France: sectarian abuses or totalitarian drift?

One year’s imprisonment and a 15,000-euro fine, and even five years’ imprisonment and a 75,000-euro fine if the offence was committed via an online communication service: these are the penalties provided for by Article 4 of the bill aimed at strengthening the fight against sectarian abuses. Which offences would be concerned? “The incitement to abandon or refrain from following a medical treatment, whether therapeutic or prophylactic” that could have serious consequences for people’s health, as well as the “incitement to adopt practices presented as having a therapeutic or prophylactic purpose for the persons concerned when it is manifest, in the current state of medical knowledge, that these practices expose them to an immediate risk of death or of injuries likely to result in mutilation or permanent disability”^[1]. Note that the text here does indeed refer to advice deemed likely to be a threat to health, without any need to prove that it actually endangered a person’s health or life. Indeed, if the “incitement” were “followed by effect, the penalties are increased to three years’ imprisonment and a 45,000-euro fine”.

Does the government want to create an offence of opinion which, because it challenges official health discourse, the belief of the moment, would be considered a sectarian abuse? That, at any rate, is what is causing controversy. Even the Conseil d’État, whose opinion is advisory, was not fooled. It proposes not to retain Article 4, considering “that, insofar as they would aim to prevent the promotion of so-called ‘unconventional’ care practices in the press, on the internet and on social networks, such provisions constitute an infringement of the exercise of freedom of expression”^[2]. It also recalls the importance of “the freedom to accept or refuse a specific medical treatment, or to choose another type of treatment, which is essential to control over one’s own destiny”. Finally, considering that criminal law already covers the illegal practice of medicine, misleading commercial practices, abuse of weakness and endangering the lives of others, the Conseil d’État found that “neither the necessity nor the proportionality of these new offences has been established”.

In order to preserve the right to freedom of expression as well as scientific debate, the Senate, at the instigation of Senator Alain Houpert, had in fact amended the government bill on 19 December last, notably by deleting Article 4. But on 7 February, the Law Committee of the National Assembly restored the bill to its original version, in order to submit it to a vote of the deputies on 13 and 14 February.

Dangerously vague criteria of application

The bill’s rapporteur, Brigitte Liso (a member of the presidential majority), seeks to reassure, explaining that proof of an intention to deceive will be required for the new offences to apply, which "will not make it possible to punish a person who, in good faith and with kind intentions, wished to advise a relative, for example"^[3]. But this reinstatement of Article 4, which she justifies by “a change in sectarian abuses” related to health, particularly on social networks, is contested by several parliamentary groups. La France Insoumise, the Rassemblement National and Les Républicains, among others, are threatening to vote against the bill if Article 4 is kept.

While the National Medical Council has declared itself in favour of reintroducing Article 4, several voices within the resistance to the management of the pandemic have been raised to warn the deputies.

The association BonSens sent a letter with acknowledgement of receipt to the presidents of the parliamentary groups, as well as an e‑mail to every deputy^[4]. It reminds them in particular that our recent history has shown the importance of freedom of speech. It is this freedom to express divergent opinions that made it possible to reveal scandals such as those of contaminated blood, Mediator or Viox, among others. Today, a law protects whistleblowers. But BonSens fears that adding this new offence to the criminal code will call this protection into question, on the pretext of a threat to public health. As a reminder, it was a pulmonologist, Irène Frachon, who sounded the alarm about the dangers of Mediator, a drug authorised by the ANSM (Agence nationale de sécurité du médicament et des produits de santé). The investigation that followed her public statements concluded that this drug, marketed for 33 years by Servier laboratories, had caused the deaths of 1,500 to 2,100 people in France.

If contradicting the statements of the health authorities becomes a heavily punished criminal offence, who will dare to question “the state of knowledge”, or what some call the “scientific consensus”? Drs Nicole and Gérard Delépine have also sent a letter to parliamentarians, in which they denounce an “anti‑science bill”^[5]. They point out that it is controversies that stimulate the progress of knowledge, “because they are likely to advance research”. By confiscating all scientific debate, this bill not only threatens French scientific research and its capacity for innovation, but also risks accelerating “the shift towards single-minded thinking observed for several decades”.

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”

But the greatest danger may lie not so much in what the text of the law says as in what it leaves unspecified. L’Appel du 1er février pour sauver la science^[6] presents the opinions of two groups of lawyers on Article 4. They warn in particular of the implicit consequences of the text. The wording “in the current state of medical knowledge”, for example, is imprecise. It does not define the boundary between information, debate and incitement. It does not provide criteria for assessing legitimate practices as opposed to those “presented as such”? It does not specify which reference will be authoritative. Authorised scientific publications? Pharmaceutical companies? The Minister of Health? The European Medicines Agency? The WHO? Its director or its private contributors, such as Bill Gates? The text of the law fails to mention the risk of the pharmaceutical lobby, private foundations or international investment funds taking control of scientific “truth”.

This law also implicitly calls into question the informed judgement of the attending physician, whose task is to assess, for each patient, the balance between the benefit and the risk of a treatment. The lawyers warn against an infringement of doctors’ freedom to prescribe, as well as of the protection of personal data. Is it the role of a judge to assess what could have serious consequences for a person’s health? In addition to the risks to the right to respect for private life, to the patient’s freedom to accept or refuse medical treatment, to the protection of whistleblowers and to scientific debate, the bill opens a further breach with Article 5. Where health professionals are suspected of “therapeutic abuses of a sectarian nature”, the text provides for an obligation to inform the Medical Council, so that it may consider professional sanctions in addition to criminal prosecution.

Are we really dealing with a text intended to combat the influence of sects, or with a totalitarian drift? A close examination of Articles 4 and 5 may raise doubts about the government’s true intention. Creating a heavily punished offence of opinion will have the effect of deterring anyone from challenging the conclusions or decisions of the health authorities. Unless such an omertà paradoxically catalyses rebellion, or the emergence of “under-the-counter” medicine, one of the characteristics of life under a totalitarian regime that seeks to control its population right into the private sphere.

By sterilising debate and stifling all controversy, the very principles of freedom of opinion and of genuine scientific and medical progress are threatened. Tomorrow, will an Irène Frachon risk being prosecuted for inciting people to refrain from following an authorised treatment? Will Professor Raoult fall foul of the law by sharing the promising results of a remedy not recognised by the health authorities? Could a media outlet like BAM be convicted for having questioned the safety of a vaccine presented as safe and effective? After the adoption of the DSA (Digital Service Act) by the European Union, aimed in particular at combating “medical disinformation”, we must remain vigilant. The French government’s bill, which targets in particular dissenters accused of “conspiracy theories”, could spread like wildfire at European level. However, in its warning to the deputies, the association BonSens draws a parallel with the tragic hours of the Terror, when the Law of Suspects of 1793 legalised the arrest of those who had “not constantly shown their attachment to the French Revolution”. A double-edged law which, in the end, proved fatal to those who had enacted it!

KAro for BAM!

Illustration by BAM!

[1] Texte de la commission n°2157 - Projet de loi - 16e législature - Assemblée nationale

[2] Avis sur un projet de loi visant à renforcer la lutte contre les dérives sectaires et la répression des emprises mentales gravement dommageables

[3] Lutte contre les dérives sectaires : le projet de loi adopté par la commission des lois de l’Assemblée | LCP

[4] Lettre aux députés : Projet de loi sur les dérives sectaires - BonSens.org

[5] Appel du 1 ER février contre l’article 4 de la loi contre les dérives sectaires pour sauver la science

[6] Appel du 1 ER février contre l’article 4 de la loi contre les dérives sectaires pour sauver la science