Following the assassination of Professor Samuel Paty, the law of August 24, 2021 “reinforcing the respect of the principles of the Republic” created in the Penal Code an article 223-1-1 punishing the endangerment of the life of others by spreading information.
What are the constituent elements of this offence? How, in practice, will it be prosecuted and punished?
Article 36 of the law “consolidating the respect of the principles of the Republic”, voted in 2021, created in the Penal Code this new article 223-1-1 repressing :
« The fact of revealing, disseminating or transmitting, by any means whatsoever, information relating to the private, family or professional life of a person allowing him or her to be identified or located for the purpose of exposing him or her or the members of his or her family to a direct risk of harm to the person or property that the perpetrator could not have been aware ».
The offence therefore punishes the dissemination of information which the sender knew or could not have been unaware would be used to harm the physical integrity or property of a person. The offence can be constituted without the harm having been committed: it is the dissemination of information with the intention of causing harm that is sanctioned here.
The dissemination of information
The first requirement is “information relating to the private, family or professional life of a person that allows him or her to be identified or located”.
This has elements in common with the notion of “personal data”, which the RGPD defines as “any information relating to an identified or identifiable natural person”, which may give, by analogy, an idea of the scope of the information concerned.
The category of privacy is completed by the reference to the family and professional context, which allows the inclusion of public information that can be used to identify or locate a person1.
The absence of reference to the school domain was justified by a reference to the domain of private life, which is not entirely convincing, especially since the aggravation of penalties in case of minority of the victim shows a particular attention to the situation of the youngest, particularly present on social networks.
The field is therefore particularly broad, but it can be assumed that the information will mainly concern postal addresses (of home, work or places frequented), schedules (of work or outings) or, more generally, any information relating to life habits. In the case of Samuel Paty, messages on Facebook had revealed the first and last name of the professor, as well as the address of the school where he taught.
Secondly, the information must be the object of an act of communication: “reveal”, “disseminate” or “transmit”, “by any means whatsoever”. If the offence was created with the intention of repressing the diffusion of information on social networks, all modes of transmission are envisaged. Moreover, it should be noted that the author of the offence is not necessarily the author of the initial message: the dissemination of information published previously could also be prosecuted on this basis.
The risk of harm to persons or property
The information transmitted must expose others (or members of the family of others) to “a direct risk of harm to the integrity of the person or to property that the author could not ignore**”. This is the core of article 223-1-1 located in the section of the Penal Code relating to “risks caused to others”: if the information disseminated does not expose a person to a risk, then the offense is obviously not established.
A direct risk
The novelty here comes from the adjective direct: if the Penal Code knows about simple risk as well as immediate risk2, it contains no mention of direct risk. As risk is defined as the probability of the occurrence of an unfavorable event, it is conceivable that immediate risk is more likely than simple risk. In the hierarchy of probabilities, where does the direct risk fit in?
A reading of the debates in committee gives a more precise idea of this notion of direct risk. Indeed, the expression “immediate risk”, initially provided for in the text, was finally replaced by that of “direct risk” on the grounds that “it is not so much the temporality that is at issue as the direct and tangible character of the risk3”. The direct risk would therefore imply a higher probability of occurrence of the risk than the simple risk, regardless of the moment of its occurrence.
A risk that the author could not ignore
The author must also have exposed others to a risk that he or she “could not have been unaware of”. It is therefore not necessary to show that the perpetrator had full knowledge of the existence of the risk at the time of the communication of the information, but only that the context could reasonably give rise to a fear of malicious use of the information.
The knowledge of the risk will be assessed in concreto, taking into account the modalities of the diffusion: what is the tone of the discussion? its subject? could the exchanges suggest the existence of a risk? which public had access to these messages?
The intention to harm
The author must have disseminated the information with the intent to expose others to a direct risk of harm. Again, intent will be inferred from the context in which the information was communicated.
Punishment of the offence
The offence is punishable by 3 years imprisonment and a 45,000 euro fine.
If the offence is committed to the detriment of “a person holding public authority, a public service mission or a public elective office or a journalist” (paragraph 2) or to the detriment of a minor (paragraph 3), the penalties are increased to five years imprisonment and a fine of 75,000 euros.
These penalties can easily be described as excessive (or inconsistent) when compared to those for related offences.
Thus, although the offence of endangering the life of others puts the victim at “immediate risk of death or injury likely to result in permanent mutilation or disability”, the penalty is (in comparison) only one year’s imprisonment and a fine of 15 000 euros.
Also, as parliamentarians have rightly pointed out, the penalty of three years' imprisonment for endangerment by dissemination of information does not take into account the seriousness of the actual harm, which may be minimal. Thus, the degradation of property belonging to others is punishable by 2 years imprisonment and a fine of 30,000 euros, and intentional violence without ITT is punishable by a simple 4th class contravention.
The gap between the sentence for endangerment and the sentence for the criminal act actually committed does not seem to have moved the government too much. On this subject, the Minister of Justice stated that “basically, it doesn’t matter what the result is […] it is the infernal mechanism that passes through social networks and that rots our society that it is imperative today to stop”.
The argument based on the need for repression thus seems to justify dispensing with the hierarchy of offences (which, it should be remembered, reflects the hierarchy of values in society). One would be tempted to reply, with Beccaria, that “the true measure of crimes is the harm they do to the nation and not the intention of the guilty party”.
We can think, for example, of the freely accessible articles of association of a company which would make it possible to locate its registered office as well as, logically, the place of work of its director. ↩︎
In the case of the offence of endangering the life of others (art. 223-1) or exposure to risk in the context of human trafficking (art. 225-4-2, I, °4). ↩︎
Mrs. Laetitia Avia (rapporteur of the text), Thursday, January 21, 2021. ↩︎