France’s top court, Conseil Constitutionnel, has struck down two core provisions of a new draft law known as ‘Avia Law’ aimed at tackling online hate speech across social media sites such as Facebook, YouTube and Twitter, rendering most of the other provisions intending to support the implementation of those provisions ineffective by default.
Avia Law was intended to stop the spread of hate speech and related content on the internet by creating quasi-instantaneous take down requirements for social media sites to adhere to and imposing strict sanctions in instances where they did not adhere. The intended penalty was to fine social media sites up to 4% of their global revenues for failing to remove within 24 hours “clearly illicit” content related to race, gender, religion, sexual orientation or disability or for failing to remove any content flagged purported to be child pornography or terrorist propaganda within one hour.
The new take down obligation was applicable to online platforms and search engines that reached a certain threshold of activity in France. This threshold had not yet been determined. The qualification of an “online platform” was intended to be broad and included any professional person or body offering an online service allowing multiple parties to engage and share content together.
Both provisions were struck down as contrary to freedom of speech and communication, a principle protected by the French constitution.
In relation to the discriminatory “illicit” content provision, the Court noted that the draft law intended to put the onus on the administrative staff of each social media group to interpret what was and what was not illicit content, without any intervention from a judge. The Court feared this could push social media groups to remove more online content than was necessary out of fear of being sanctioned. The Court also noted that the 24-hour window added to the pressure as it was “particularly brief” and did not allow enough time for a thorough examination to take place.
In relation to the content flagged which purported to child pornography or terrorist propaganda, the Court noted that the one-hour time frame did not allow sufficient time to assess whether the publication was genuinely unlawful or not, and would have led to a systematic take down of the content.
Having struck down these two core provisions, the Court negated subsequent provisions aimed at supporting and implementing those two provisions. The creation of a national French observatory on online hate and the introduction of educational courses covering the fight against online hate speech were among the few provisions supported by the Court.
As a result of the Court’s findings, the draft law will have to be revised by the French authorities in total.
Click here for the decision in French.