Baldassi and Others v. France, Nos. 15271/16 and other 6, ECtHR (Fifth Section), 11 June 2020

Militant action to boycott products from Israel considered as a discriminatory crime without relevant and sufficient reasons. Violation of the right to freedom of expression.

Art. 10 ECHR

1. The call for a boycott constitutes a particular method of exercising freedom of expression in that it combines the expression of a protesting opinion and the incitement to differential treatment so that, depending on the circumstances, it is likely to constitute a call to discrimination. However, the call to discriminate is part of the call to intolerance, which, along with the call to violence and the call to hatred, is one of the limits that should not be overcome under any circumstances in the context of the exercise of freedom of expression. Nevertheless, inciting to treat differently does not necessarily amount to inciting discrimination.

2. By its nature, political discourse is a source of polemics and is often virulent. It remains nonetheless of public interest, unless it degenerates into a call for violence, hate, or intolerance. The Court has pointed out on numerous occasions that Article 10 § 2 leaves little room for restrictions on freedom of expression in the field of political speech or matters of general interest.
(The eleven applicants complained about the limitation to their freedom of expression under article 10. They were acquitted at first instance, but then condemned on appeal for incitement to discrimination for urging customers in a supermarket not to purchase products imported from Israel in support of the of the international campaign ‘Boycott, Divestment and Sanctions’ (BDS). The ECtHR found a violation of article 10. While the interference had been prescribed by the law with the legitimate aim of protecting the rights of others, the Court did not deem it necessary in a democratic society since the reasons underlying it had been irrelevant and insufficient).

The applicants complained also about the violation of article 7 (nullum crimen sine lege). The Court did not find any breach in that regard. Although the subsection of the law in question did not explicitly condemn incitement to economic discrimination, covered by a different subsection, the applicants ought to have foreseen their conviction for their call to boycott products imported from Israel, given the Court of Appeal’s and the Court of Cassation’s case-law on similar acts.