«What does the law say» about mob harassment: an update on case law

The internet is a vehicle for the proliferation of hateful content. However, it is not a lawless zone, as evidenced by the conviction of eleven defendants in the Mila trial in early July. Beyond defending freedom of expression, we must remember that internet users have a responsibility. Many of them had mistakenly felt a sense of impunity in insulting, threatening or expressing hateful comments against other people behind their screens, and convictions had been fairly rare until then... The offence has been the subject of developments and case law. We take stock of the situation.

The offence of cyberbullying has undergone legislative changes.

– Firstly, Article 222-33-2-2 of the Criminal Code (see text here) created by the law of 4 August 2014 established a specific offence of online harassment. The criminal classification of this offence required repeated behaviour that had to be sustained over time.

– The law of 3 August 2018 against sexual and sexist violence (see criminal law text here) expanded the concept and thus strengthened the relevant article of the Criminal Code, introducing the concept of mob harassment or «digital raiding». It allowed for a broader definition of the concept in that it supplements the articles dedicated to psychological harassment and sexual harassment. Offences now consist of:

• When such remarks or behaviour are imposed on the same victim by several persons, acting in concert or at the instigation of one of them, even though each of these persons has not acted repeatedly; ;
• When such remarks or behaviour are imposed on the same victim, successively, by several persons who, even in the absence of concerted action, know that such remarks or behaviour constitute a repetition.

This new definition offers greater protection to victims of cyberbullying by criminalising anyone who has participated, even through a single act and without collusion, in the group bullying of another person. In practice, taking part in a smear campaign against a person via a single offensive tweet is therefore punishable by law.. Raids carried out for the purpose of cyberbullying target concerted harassment. Members of an incriminated group may be individually punished under criminal law without having acted repeatedly or in concert.

The law provides for stricter penalties for such behaviour. Thus, cyberbullying – whether psychological or sexual – is punishable by two years' imprisonment and a fine of €30,000.

Digital raids or harassment committed by a group can be punished by up to three years' imprisonment and a fine of €45,000 if the harassment is of a sexual nature.

There are still too few convictions. Only one conviction has been handed down for cyberbullying. It involved a blogger named Marvel Fitness in September 2020. Three men and six women – including the lawyer of one of the victims who became a victim herself – had filed a complaint against him. He was accused of sending thousands of insults to the complainants over a period of nearly three years and inciting his subscribers – more than 150,000 people – to send abusive and disparaging messages. The Versailles Criminal Court sentenced him to two years in prison, including one year without parole, and a fine of €10,000. The judges considered Marvel Fitness to be responsible for the comments sent by his subscribers.