Prof. Perronne's Freedom of Expression Before the ECHR

CNews is challenging a formal notice from the French broadcast authority before the ECHR. At issue are comments made in November 2021 by Professor Perronne that went against the government's narrative at the time on Covid-19. Will the ECHR defend the freedom of expression of a former WHO expert?

The case of CNews v. France

On November 21, 2021, Professor Perronne was invited to appear on the program “Les points sur les i” to share his expert opinion on the health crisis. During the program, he downplayed the dangers of a fifth wave of Covid-19 infections, claimed that a drug treatment existed for the coronavirus, and said that the new vaccines, still in the experimental phase, could alter the human genome.

These comments were reported to Arcom, the French audiovisual regulatory authority. It issued a formal notice to CNews for allowing Professor Perronne to express his views without any immediate contradiction. This type of decision is serious because, once there are several of them, Arcom can use them to justify a broadcasting ban against the channel, as happened to the TV station C8.

Arcom's decision of May 10, 2022, was upheld by the Council of State on August 4, 2023 (appeal rejected), and CNews therefore decided to bring the case before the European Court in Strasbourg, arguing that Professor Perronne's freedom of expression had been violated and punished with a disproportionate formal notice.

The ECLJ was authorized by the Court to file written observations in this case, in which we highlight several legal and factual elements.

A questionable government policy

The infringement of Professor Perronne's freedom of expression is clear, but is it justified? In hindsight, it is clear that it was not justified, since the government's policy to combat the spread of the coronavirus epidemic has not been successful. The government has publicly and knowingly banned all drug treatments by restricting doctors' freedom to prescribe and imposing an exclusive vaccination policy. These new types of vaccines quickly showed their limitations, as it turned out that they did not protect against transmission or infection itself.

Several Western governments have since admitted to putting pressure on journalists and social media to discredit any alternative treatments and criticism of the vaccines. Similarly, Mark Zuckerberg and other leaders of major social media networks have since admitted to being under enormous pressure from the Biden administration to remove such content. Thus, this formal notice against CNews for Professor Perronne's comments was clearly intended to “set an example” so that he and others expressing similar views would no longer be invited onto television programs.

Will the European Court of Human Rights be sensitive to this? Nothing is less certain. Since the Covid crisis and the beginning of protests against restrictive and freedom-killing measures, the Court has systematically sided with the states by accepting violations of fundamental rights and freedoms. The ECLJ has demonstrated this particularly in relation to violations of religious freedom, where the Court has always found a pretext to reject appeals against the suspension of worship. This is also true for freedom of movement and freedom of expression. The Court has systematically tolerated violations of citizens' fundamental rights.

A special requirement added by Arcom

Fundamentally, Arcom's criticism of CNews is absurd. The authority criticizes the channel for allowing Professor Perronne to express his point of view without immediately challenging him on the set because he was making controversial statements. Arcom bases its criticism on CNews' commitment to “ensure the honest presentation of controversial issues, in particular by ensuring that different points of view are expressed by journalists, presenters, hosts, or on-air contributors.”

In practice, this means that when someone with no medical expertise drones on TV about ”everyone vaccinated, everyone protected," respect for different points of view is ensured. On the other hand, if a medical expert such as Professor Perronne (recognized as such by all until the Covid-19 crisis) challenges the government's line, then someone on the set must immediately contradict him. This unfounded requirement completely ignores the fact that in order to assess the pluralism of a media outlet and its respect for the expression of different points of view, it is necessary to take into account all of its programs over several months, not just one program. In this case, giving Professor Perronne a few minutes to express a point of view contrary to the vocal majority was precisely the only thing to do to ensure “the expression of different points of view” in the face of this overwhelming majority expressing its support for government policy on a daily basis.

Mr. Maxime Boutron: freedom of expression at the service of the government

Double standards apply particularly to this case and may explain the sanction imposed on CNews. Mr. Maxime Boutron, then CFO of the French National Center for Cinema in 2021, was also able to express his views on CNews at least twice in November of that year. He was able to express himself without contradiction or nuance (or expertise) on the public health policy of Mr. Macron and his government. As explained above in our example, which is not fictional, in this situation, pluralism and freedom of expression are fully respected, and there is no problem for Arcom.

A few months later, Mr. Boutron was able to rejoin the Council of State as a master of petitions. Whether by chance or not, he was the public rapporteur in this case before the Council of State and, unsurprisingly, requested that CNews' petition be dismissed. In conclusion, when Mr. Boutron speaks on a medical subject without any medical expertise, it is normal that no one contradicts him on television. But when Professor Perronne speaks and says the opposite of what Mr. Boutron thinks, then someone must immediately contradict him on the set...