ARTICLE 19 welcomes a number of amendments recently put forward by the Public Bill Committee of the French Senate (“la commission des lois du Sénat”) regarding the Avia Bill on combatting illegal ‘hate speech’ and other types of illegal content under French law. In particular, we welcome:
- An amendment that would remove the obligation for ‘dominant’ digital companies to remove ‘hate speech’ and other illegal content within a maximum period of 24 hours under the Avia Bill.
- An amendment removing the obligation for platforms to “prevent the redistribution” of illegal content that has already been found as unlawful. The Commission found that such an obligation would amount to imposing an obligation for platforms to monitor all content posted by its users and comparing it with all content that has been removed. The Commission also correctly identified that such an obligation could be in breach of EU law, as Article 15 of the EU E-Commerce Directive strictly prohibits imposing such a general obligation on providers.
- An amendment whereby interoperability between ‘public communication platforms’ would be encouraged where appropriate, a suggestion initially made by our friends at La Quadrature du Net and which has been gathering steam, notably with a recent announcement from Twitter moving in this direction.
The intervention of the Commission des lois echoes the concerns of the Committee on Culture, Education and Communication of the French Senate (“la commission de la culture, de l’éducation et de la communication du Sénat”) of 4 December 2019. That Committee also put forward amendments with a view to define more clearly the scope of the role of the Conseil supérieur de l’audiovisuel (CSA), and the terms of notice and sanction.
By contrast, a recent amendment made by the commission des affaires économiques raises concerns that the CSA would have unchecked powers to decide which platforms fall within its remit on the basis of very vague criteria.
Civil society concerns
The Commission des lois’ proposals reflect some of the demands from civil society. ARTICLE 19, alongside Access Now, Centre for Democracy and Technology, Državljan D, EDRi, Electronic Frontier Finland, Epicenter.works, Homo Digitalis, Index on Censorship, and IT-POL, have written to the Rapporteurs of the Senate tasked with scrutinising the Avia Bill.
In our letter, we raise concerns relating to the scope, enforcement regime, and sanctions under the Bill, including:
- Overbroad scope of the Bill, both in terms of types of intermediaries and range of illegal content: while the original version of the Bill was conceived as being applicable to all dominant digital companies, the latest text grants the French government great freedom to decide the scope of the application of the rules, including to small local providers. The Bill makes no provision for a tiered or proportionate approach, meaning that, in practice, social media companies, search engines, and not-for-profit platforms will all fall within the scope of the Bill. Providers such as Wikipedia would be required to have the same costly content moderation measures in place as a dominant social media company like Facebook.
Similarly, the scope of the Bill has been extended from illegal ‘hate speech’ to a wide range of other provisions including: apology of acts constituting an offence against human dignity, war crimes, crimes against humanity, slavery, crimes of collaboration with an enemy, voluntary interference with life or physical integrity, sexual aggression, aggravated theft, extortion or destruction, voluntary degradation or deterioration which is dangerous to a person, sexual harassment, human trafficking, pimping, incitement to or apology of acts of terrorism and child abuse content. Although most of these offences cover speech or conduct that can be legitimately restricted under international standards on freedom of expression, a significant number of those are drafted in overly broad language that could lead to unwarranted prosecutions.
- Privatising censorship: The Bill creates a framework that effectively devolves responsibility for censoring content to private companies. Platforms would be required to remove or block manifestly illegal content without prior determination of the legality of the content at issue by a court. Private companies would therefore be put in the position of determining the legality of content, a function that should eminently rest with the courts.
Disproportionate sanctions: Under the Bill, the Conseil supérieur de l’audiovisuel (CSA) may impose a fine of up to 4% of platforms’ global turnover if they fail to comply with their obligations under the Bill. (Articles 2 and 4) These include compliance with the ‘recommendations, best practices and guidelines’ issued by the CSA to communication service providers with a view to ensuring proper compliance with their new obligations under the law (Article 4). We worry that this ultimately give incredibly broad discretionary powers to an administrative authority – rather than the courts – over the limits of expression online. Moreover, we are concerned that the threat of such heavy fines would inevitably nudge companies towards over-removal of content, resulting in a chilling effect on free expression.
Many of these concerns have also been raised by La Quadrature du Net and are also reflected in the submission made to the European Commission by the European Digital Rights (EDRi) initiative, an association representing 42 human rights organisations from across Europe. The European Commission has mainly responded positively to these concerns and has asked France to postpone the adoption of the law, noting that it risks violating Articles 3, 14 and 15 of the E-Commerce Directive.
The way ahead
The French Senate is moving in the right direction with a number of positive amendments. However, it must go further. Hate speech online is undeniably a matter of great concern, as is the need to ensure strong safeguards for the protection of freedom of expression. Yet the Avia Bill seeks to address the former at the cost of the latter. Given the expected review of the E-Commerce Directive and the adoption of a Digital Services Act at the EU level – as well as the recent calls for EU legislation on hate speech – there is every reason for France to pause rather than press on with the Bill.
As the French Senat debates the Avia Bill on 17 and 18 December next week, we urge it to reject it in its entirety.