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The Avia bill against hate on the Internet, by the press law lawyer in Paris

by | May 21, 2020

social networks

Objective

The bill against hate on the Internet aims to delegate to the most important platforms a more vigorous mission of removing (certain) hateful content published by Internet users using their services, as soon as they are reported, under penalty of heavy fines.

Reserve and possible censure of the Constitutional Council

We have complained (senators, European Commission, etc.) of too great a restriction on freedom of expression, and the Constitutional Council, which examines the law, may have reservations about this. Failure to notify the law to the European Commission may compromise its application.

 

Hate online: a problem of public decency – the means put on the table by the bill

The fact remains that an individual victim of hatred on the Internet, and in particular of collective hatred (phenomenon of quarry, or "digital raid"), generally does not have the means to defend himself, or to an unaffordable cost: establishment of evidence, complaints, follow-up of complaints and length of the legal process, difficulties of investigation (in particular with regard to data hosted abroad) and great uncertainty about the execution of decisions against persons or platforms residing abroad, – even if the summary or the request can in certain cases speed things up.

The law is therefore essential to "turn the tide" in the sense that it is now whoever takes the initiative of hateful content against a French national who will be responsible for defending his statement if he considers that he has was wrongly deleted by the platform.

The cost will weigh on him. And he obviously won't want to bear that cost.

Especially if he had taken care to publish his remarks under a pseudonym: that would oblige him to identify himself and
to take the risk of having to face a conviction this time.

The removal of the content will not protect the author of the hate speech against criminal prosecution if the victim or a prosecutor (with the future specialized prosecutor's office in Paris) deems it necessary.

The platform will be held liable if it does not remove the reported content and may be penalized for this at the end of a single-judge legal process.

On the other hand, if she wrongly removes the content, she will also be concerned, if she is the subject of legal proceedings, but to an undetermined extent – no specific offense of over-censorship envisaged here, in accordance with a traditional approach to editorial freedom. –

The joker who has unduly reported content, will in principle also be punishable, under the specific offense of false denunciation (15,000 euros fine).

The CSA may possibly pronounce administrative sanctions against a platform having a general behavior of over-censorship, without however being able to go against the own general conditions of the said platforms, which could institute strong censorship precisely with the aim of avoiding disputes, or in application of own editorial choices.

The bill therefore organizes a real bonus for withdrawal, which compensates for the lack of means of the victims, with the risk of a real generalized over-censorship, overseen by the CSA.

 

Update June 18, 2020:

“The Constitutional Council recognizes the problem, validates the principle of a law, but considers that the means we have found are not the right ones. We must therefore continue to work to find solutions that will achieve consensus and can be applied." https://twitter.com/LaetitiaAvia/status/1273686096354967553

 

Update January 2021:

In France, the “separatism” or “respect for the principles of the Republic” bill, under debate in the National Assembly in January 2021, the “online hate” component is carried by Ms. Laetitia Avia, who had been fired "Law against online hate" project rejected by the Constitutional Council, and criticized for promoting over-censorship and not being part of the European Union's calendar.

Online hate is indeed still relevant, and, according to social network statistics, millions of hateful messages need to be deleted every day: even if we multiplied the legal means, this would still amount to emptying the ocean with a little spoon.

Moreover, social networks are a vector of public expression, they invest the public space, and it seems indeed shocking to leave this public space to the goodwill of the foreign private companies which exploit these networks. Sovereignty issue.
 
The project of strengthening the action of the public authorities, of administrative action, therefore remains eminently relevant.
 
The online hate component of the "separatism" project is part of the European DSA-DMA directive projects on new Internet regulation (see “2021: DSA – DMA – The new Internet regulation in preparation: remarks on the projects of the European Union”) and takes up the following developments:
 
– Digital National Public Prosecutor's Office, with the active role of activist associations that report and support legal actions; PHAROS receives the reports, forwards them to the national prosecutor's office, which can refer to the local prosecutor's office, according to criteria of scope, intensity, complexity,
– The CSA (which would become “ARCOM”) would oversee the general operation of the platforms,
– ARCEP could connect to the platforms' algorithms,
– Observatory of experts on "hate online",
– Offense of putting personal data online with knowledge of a context, which could endanger others (Samuel Paty case),
– Immediate appearance with regard to offenses committed outside the classic editorial context covered by press law, with the difficulty for the investigator of registering in a context of flagrante delicto and minimum sentence attached to the offense, conditions of the immediate appearance, the difficulty of matching long sentences with the short press prescription.
 
 

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