Court/Judicial body: Court of Appeal of Angers
Citation: Cour d’appel d’Angers Chambre correctionnelle Arret du 10 juin 2003
Date: 10 June 2003
Instrument(s) cited: Penal Code, Article 227-24 (crime to produce, transport, and distribute by any means, a message containing; violence, pornographic, or likely to cause serious harm to human dignity provided that it is likely to be seen or perceived by a minor)
Background: A man who had mistakenly received pornographic images by email filed suit against the sender for violating a Penal Code provision prohibiting the distribution of such images when they are likely to be seen by a minor. The emails contained images of morbid drawings such as a dead man with an open wound to the skull, an infant’s body autopsied, and a foetus cut into pieces in a dish, as well as imagines portraying sex including bondage and open cuts. The sender argued that an email was similar to a private correspondence as it was protected by secrecy (a password) therefore could not be accessed by minors. Additionally, the sender argued that he had no criminal intent, as the photos did not meet the legal definition of violent or intrusive messages to the human dignity. He said that he was part of an artistic movement that specifically works with corpses, mutilation, and sex in their art.
Issue and resolution: Freedom of expression; exposure of children to graphic violence. Whether the sender of violent and pornographic images via email could be held accountable under a law penalizing distributing violent or pornographic images when it likely to be seen by a minor. The appeals court ruled that the sender was not responsible because the emails were private and password protected, a minor could not have accessed the content unless the recipient had been neglectful. The duty of precaution therefore lay with the recipient.
Court reasoning: In agreeing with the sender’s argument, the court reasoned that email is analogous to private correspondence; it is protected by a personal and confidential password that is created by the recipient. Senders know that email is accessible only with a password, so that it is only by the receiver’s will or neglect that a minor would have access to the emails containing these images. Additionally, the court agreed that the defendant did not have the criminal intent.
Link to full judgement: http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=47