French Constitutional Court rejects controversial new online harms rules

Written on 7 Jul 2020

On 18 June 2020, the French Constitutional Council has ruled on the conformity of the French law adopted by the Parliament to tackle the spread of hate speech through Internet (the so-called Avia law, which we discuss here) before its enactment. The court struck down the highly controversial flagship provisions of this law, which would reduce the time within which platform providers were required to respond to reported hate speech content, to: (i) 24 hours for hate speech content reported by users and to: (ii) 1 hour for specific harmful content reported by French authorities as child pornography or terrorist propaganda, subject to criminal sanctions.

The Constitutional Council deemed these provisions to be unconstitutional on the grounds that they undermine freedom of speech without being "appropriate, necessary and proportionate” to their purpose. The court also highlighted the deadlines as being too short, the lack of intervention of the French judge and the risk of "over-censorship" or "over-blocking".

What are the consequences?

The Avia law has been significantly reduced in scope as a result of this decision, since the censorship of the provisions discussed above has led to the invalidation of other closely related provisions (even if they were not ruled unconstitutional). This is the case in relation to the preventive aspect of this law, which imposes various due diligence obligations on platform providers under the scrutiny of the French broadcasting regulatory authority, in order to increase the transparency towards users and the cooperation with the French authorities or to ensure remedy mechanisms towards users.

As a result, only 8 articles out of 19 remain. The provisions that do survive, result in:

  1. the increase of the criminal fine from EUR 75,000 to EUR 250,000 (to be multiplied by five for legal entities) in case of non-compliance with the following obligations (that already existed under French law) on online platform providers:
    a. the obligation to hold and retain data allowing the identification of anyone who creates content through their services (for potential transmission to the French authorities);
    b. the obligation to provide an accessible tool to notify the harmful content promoting crimes against humanity, provoking and promoting acts of terrorism, promoting hatred against persons on grounds of their race, sex, sexual orientation or identity or disability, child pornography, violence, and violating human dignity;
    c. the obligation to promptly inform the competent authorities of any of the above harmful content reported to them and that come from users of their services;
    d. the obligation to make available to the public the means implemented to tackle the above content;
  2. the creation of a specialised digital prosecutor's office regarding certain types of criminally reprehensible harmful content;
  3. the creation of an "online hate speech observatory" linked to the French broadcasting regulatory authority.

Until further action is taken, the current liability regime (resulting from the e-Commerce Directive) will therefore continue to apply on platform providers.

What are the next steps?

The few remaining provisions of the Avia law should be enacted and implemented by the French authorities in the coming months.

The French government has indicated that it will consider a new mechanism to tackle online hate speech, in collaboration with the concerned parties and taking into account the Constitutional Council’s decision. It should now focus on the development of a European framework for digital platforms, within the framework of the future Digital Services Act announced by the European Commission.