L’Assemblée nationale francaise (the lower house of the French parliament) yesterday passed a “Draft law aimed at fighting incitement to seek extreme thinness or anorexia” providing for fines of to €30,000 and terms of imprisonment of up to two years for inciting to “excessive thinness” and more if the incitement results in death (see Associated Press | Daily Telegraph | Guardian | International Herald Tribune here and here | Irish Independent | Irish Times | Media Law Prof Blog here and here | New York Times; update Volokh, including the French text of the Bill). The Bill will go before le Sénat (the upper house) next month. According to the Guardian, the Bill:
would bar any form of media, including websites, magazines and advertisers, from promoting extreme thinness, encouraging severe weight-loss or methods for self-starvation … [and] is specifically aimed at what French MPs called pro-anorexia “propaganda” websites … [which] support anorexia as a lifestyle choice rather than a medical disorder … The blogs and forums, which have developed in the US since 2000 and grown in France over the past two years, often include talk-boards frequented mainly by teenage girls and young women with advice on how to get through the pain of extreme hunger after eating a yoghurt a day, or how to hide extreme weight-loss from parents or doctors. Some use pictures of excessively thin models as “thinspiration” for self-starvation.
There is plainly an important social issue here, and much good work is done in Ireland by groups such as Bodywhys (especially their online support group). Indeed, more can be done to combat this problem without recourse to censorship. For example, the International Herald Tribune reports that
In Spain, support groups have emerged to counter the influence of pro-ana Web sites, and government authorities prodded Microsoft to close down four such groups on its social networking site, Live Spaces. Health experts in Britain have also attacked the growth of Web sites that refer to anorexia as “my friend ana.”
Apart from alternatives to the Bill or its wisdom in its own terms, it raises two other significant issues. First, to the extent that it seeks to regulate both French and US pro-anorexia websites, it demonstrates that governments are determined to attempt to regulate internet speech. Whatever Alex Kozinski might say, if this is passed by le Sénat, it will be relatively successful in practice in closing down such sites in France and in preventing access to such sites abroad. Of course, the most technologically adept will circumvent the restrictions, but many (most?) will not. Second, it raises significant issues relating to the protection of freedom of expression under Article 10 of the European Convention on Human Rights, which provides:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of 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 information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Clearly, the French Bill infringes Article 10(1). The question is whether it can be justified by Article 10(2): if the Bill is enacted, the restriction will be “prescribed by law”; and it can be justified in principle as “for the protection of health”; so the question will be whether it can be said to be “necessary” for that purpose. The European Court of Human Rights approaches this question by requiring that the restriction be proportionate to the end pursued; in general, restrictions on incitement will be upheld as proportionate only where there is a high degree of imminence between the inciting speech and the harm sought to be prevented (see the Sürek cases against Turkey: 23927/94 & 24277/94  ECHR 50 (8 July 1999); 26682/95  ECHR 51 (8 July 1999); 24122/94  ECHR 52 (8 July 1999); 24735/94  ECHR 53 (8 July 1999); 24762/94  ECHR 54 (8 July 1999)); and restrictions are unlikely to be upheld where effective but less restrictive alternatives are available (see 14234/88 & 14235/88 Open Door and Dublin Well Woman v Ireland  ECHR 68 (29 October 1992)). If there is an insufficiently high degree of imminence between the pro-anorexia websites and ill-health, or if there are adequate but less restrictive alternatives to banning those sites, then the French law – if passed by le Sénat – is unlikely to survive scrutiny in the European Court of Human Rights.
… According the the Christian Science Monitor, similar laws have been enacted in Spain and Italy. The bill … has been strongly endorsed by the country’s ruling party, led by President Nicolas Sarkozy. …
In the U.S., the intersection of free speech claims and government efforts to promote public health can be seen in anti-obesity initiatives like the New York City’s ordinance requiring restaurants to post the calorie count of foods served. (See prior post on rejection of First Amendment challenge to the NYC ordinance.) For a useful examination of this set of issues in the context of food advertising aimed at children, see Northeastern law professor Wendy E. Parmet ‘s article, Free Speech and Public Health: A Population -Based Approach to the First Amendment, 39 Loy. L.A. L. Rev. 363 (2006).
The article is available here (pdf), and is part of a fascinating symposium Food Marketing to Children and the Law, which discusses several relevant free speech issues in comparative perspective. In that article in particular, Wendy Parmet and Jason Smith argue that if the Supreme Court of the US were
to recognize consistently that speech acts not only upon individuals, but also upon the social and political environments in which they exist, that is, if the Court were to consider the way that speech affects populations, the First Amendment would not present quite as formidable a barrier to limited regulations of commercial speech as it now does. Moreover, if the Court employed a population-based perspective, it would more carefully ensure that the protection it affords individuals and corporations from compelled speech does not extend so far as to seriously threaten public health.
Plainly, similar reasoning would be available under Article 10 ECHR, and it will be interesting to see if the French legislation survives scrutiny on this basis.