FRANCE: Anti-hate speech Bill restricting online civic space closer to final approval

(Article by ECNL – 15 January 2020, accessible HERE)

A very controversial legislative bill countering online hate speech in France is heading for final discussion and definitive approval in the French Parliament.

The proposal for a “Law aimed at combating hate content on the internet” – also known as “Avia Bill” from the name of its sponsor – was originally discussed and approved by the French National Assembly (one of the two French parliamentary chambers) in July last year and subsequently cleared in the Senate with a series of amendments attempting to modify its most draconian provisions. However, the Joint Parliamentary Committee summoned on 8 January 2020 to discuss the two different versions approved by the National Assembly and the Senate failed to reach a compromise agreement between the two chambers. Under the French legislative process, this means that the current text of the bill will now go back to both chambers for discussion but the National Assembly has the final say on the text, with the right to re-introduce its original version and approve it through a simple majority, overriding any amendments from the Senate. The final vote of the National Assembly on the Avia Bill is expected to take place between 1 and 17 February 2020.

The text of the Avia Bill backed by the National Assembly includes the following provisions (English translation courtesy of the French-American Bar Association):

  • The scope of the law extends to “operators of online platforms […] offering an online public communication service based on connecting multiple parties for the purpose of sharing public content or based on classifying or referencing content by means of computer algorithms, which is offered or placed online by third parties, where this activity on French territory exceeds a threshold, determined by decree” (Article 1). Since the type of threshold to identify online platform providers is not already specified by the law and is deferred to a government decision by decree, the government will be empowered to decide whether to limit the scope of the bill to online providers based, e.g., on their size/dominance on the digital market or to extend it to small local providers such as not-for-profit platforms (e.g., Wikipedia), based on the number of users of such services. Furthermore, the provision refers to “activity on French territory” regardless whether the online platforms are established in France or in other EU Member States. This means that online platforms in other EU Member States would fall under the Avia Bill as long as they reach the French territory and meet the relevant threshold.
  • The online platforms falling under the scope of the law are required “to render inaccessible, within 24 hours of notification by one or more persons, any content manifestly constituting of the offences” mentioned in this and other laws (Article 1).The removable offences include a very broad range acts, including the apology of acts constituting an offence against human dignity, of voluntary interference with life or physical integrity, of acts of terrorism. Furthermore, those who notify such offences are not required to provide reasons why they believe the online content is a manifestly illegal offence. Online platforms are also required to adopt “appropriate resources to prevent the redistribution of content” that is manifestly illegal (Article 2, par. 5 bis). This requirement and the very tight timeline for removal is very likely to compel online providers to adopt filters in order to monitor, detect and automatically remove suspicious content, leading to over-censorship.
  • The new offence of “refusing to remove a manifestly illegal message” is added to the French Criminal Procedural Code. The French Higher Audiovisual Council can fine an online provider up to 4% of its global annual turnover in case of “serious and recurrent failures” to comply with the obligation of removal of manifestly illegal content (Article 4). Fines up to 250,000 euros can also be issued for failing to cooperate with law enforcement of other agencies (Article 3 bis), e.g. if an online providers fails to preserve “deleted illegal content […] for a maximum of one year for the purposes of investigating, identifying and prosecuting illegal offences.” (Article 1). The criminalisation of the refusal to remove a manifestly illegal message and the significant amount of these fines are also very likely to compel online platforms to remove content arbitrarily without going through a judicial review.

The Avia Bill already faced criticism last year from the European Commission for violating several provisions of the EU E-Commerce Directive 2001/31/EC, including the freedom to provide information services across EU Member States and  non-liability of platform providers for the removal of illegal third-party content.

The French digital rights advocacy group La Quadrature du Net is currently spearheading a national campaign to invite French residents to call on their MPs to reject the bill in its entirety.