- The Constitutional Council largely censored the bill against online hate, brought by the deputy LREM of Paris Laetitia Avia.
- The Wise Men ruled that certain provisions were "infringing on freedom of expression and communication".
- Me Alexandre Lazarègue, lawyer specializing in digital law and press law, deciphers for 20 Minutes the main issues of this decision.
It is a victory for platforms and web giants. The Constitutional Council censored the heart of the controversial online anti-hate law, ruling that certain new obligations imposed on Internet platform operators violated freedom of expression and communication. Adopted on May 13 by the National Assembly, this law brought by deputy LREM of Paris Laetitia Avia was to enter into force on July 1, but it is now deprived of a very large part of its substance.
The Sages censored the flagship provision of the text, the obligation made to social networks to delete, within 24 hours, under penalty of criminal sanctions, the "hateful" content that is reported to them. The Constitutional Council also censored the provision providing for the application of a sentence of one year imprisonment and a fine of 250,000 euros in the event of non-withdrawal within the deadlines. Me Alexandre Lazarègue, lawyer specializing in digital law and press law, deciphers for 20 Minutes the main issues of this decision.
Decision No. 2020-801 DC of June 18, 2020, [Law to combat hateful content on the internet] Partial non-compliance https://t.co/TdQW6mbqh8 pic.twitter.com/tjJXCbjbNj
- Constituent Council (@Conseil_constit) June 18, 2020What are the provisions that were censored by the Wise?
It is truly a fiasco for the government. It is the very essence of the law that has been more or less disputed. It is quite rare for the Constitutional Council to make this kind of decision, but it has taken the time to do so. What was proposed in the law was completely excessive. In fact, it was just impossible to apply. It was planned to ask digital platforms to delete all messages and content considered to be hate in the broadest sense (incitement to hatred, child pornography, defamation, racial, gender discrimination, etc.). The list of messages likely to be removed from social media was extremely long.
And they were asked to delete this content within 24 hours of the notification made by the user, or even an hour for messages inciting to terrorism and child pornography messages. Classic judicial recourse was possible, but there was no stay of the decision. The Constitutional Council ruled that this was completely disproportionate with regard to the principle of freedom of expression, further considering that the burden placed on the Gafa was disproportionate. The host or publisher who did not comply with the deletion deadline was also liable to be sentenced to one year imprisonment and a fine of 250,000 euros. This is all that the Constitutional Council censored. He felt that it was not suitable, and he invited the legislator to review his copy.
What will happen now?
For the moment, it is still the law in force that applies, that is to say the law of the traditional press with the law on freedom of the press of 1881. It is she today who continues to regulate all content on the Internet. Individuals who originate illicit messages can be prosecuted in civil or criminal courts. But if the legislator wanted to promulgate this law, it is because the judges today have great difficulty in sanctioning the remarks published on the social networks. Firstly because they are often published anonymously, and secondly because platforms today do not assume any form of responsibility for the content they disseminate. The Gafa are not considered publication directors, but only "mailboxes".
So today, we are at an impasse. Instead of promulgating an overly radical and overly complicated law, the law on press freedom should be reformed by relaxing certain conditions. As for example the prescription of three months to be able to prosecute an individual for defamation. Today it is completely disconnected from reality, it is completely absurd in the society in which we live. Let us say that there is still an extremely heavy formalism in this law of 1881 which is no longer adapted at all today. And then the specialized chamber in charge of these questions is completely overwhelmed. If you bring an action against someone, it will take at least a year to have a hearing. But the message will remain online ...
Concretely, will there be a new bill or will it be completely abandoned?
The text is currently censored. It cannot be signed by the President of the Republic, it cannot be promulgated and published in the Official Journal . There will probably be a new bill, but we will have to start all over again because these are the essential provisions that have been censored. The text itself is stillborn, it is completely emptied of its substance. But the question of regulating content on social networks remains topical, and still just as burning.
What must also be emphasized is the way in which the law was passed. All this was done during the confinement, when the National Assembly was not complete. Parliamentary debates and in general legislative work were done in a rush. There was a desire to push through and for questions as essential as freedom of expression, it is absolutely necessary to seek consensus. That may also be why we are here today.
The large platforms are therefore today rather satisfied…
These are the big winners of this showdown. However, we had not heard them during the debate, they had not expressed themselves, either negatively or positively. I think that they did not even lobby because they are well aware of their responsibility in the dissemination of hateful content. They will therefore be able to continue their activities quietly with complete impunity, without having to account. And that is something really problematic.
What should also be noted is that this text was almost the copy and paste of the German law which also requires removal of illegal content within 24 hours. It didn't seem to be a problem there. But I think that we do not have the same relation to freedom of expression, and the same radicality of the remarks made on the platforms. In France, we are the victim of a polarization of debates which greatly complicates things.
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