(June 29, 2020) On June 18, 2020, the Conseil constitutionnel, France’s constitutional court, struck down key provisions of a bill on online hate speech. This bill, known as the “Loi Avia” (the Avia Law) for the name of its principal sponsor, National Assembly member Laetitia Avia, was initially submitted on March 20, 2019, and finally adopted by the French Parliament on May 13, 2020, after a long legislative process. The controversial bill was referred to the Conseil constitutionnel by a group of over 60 senators before it could be signed into law. The bill, minus the provisions struck down by the Conseil constitutionnel, was signed into law by President Emmanuel Macron on June 24, 2020.
The Loi Avia aimed to fight hate speech on high-visibility social media platforms and search engines, such as Facebook or Google, by mandating that they remove “clearly illegal” hateful content within 24 hours of being notified of it. This was to apply to content violating “human dignity” or inciting hatred, violence, or discrimination on the basis of ethnicity, religion, gender, sexual orientation, or disability. Amendments added child pornography and the promotion of terrorism to the list, with the requirement that such content be removed within an hour if the company was notified by government authorities. Failure to remove content within 24 hours (or one hour, in the case of child pornography or promotion of terrorism notified by the government) could lead to fines of up to 200,000 euros (about US$224,500). If the company behind a social media platform or search engine does not have adequate procedures in place to allow users to flag illegal content and to remove such content within the required time frame, the bill gave an independent government agency the authority to impose fines of up to 20 million euros (about US$22.45 million) or 4% of the company’s global annual revenue, whichever was higher.
The bill also allowed government authorities to order the blocking of access to any websites that duplicate, wholly or in part, the content of a website previously prohibited by a court order. Additionally, the bill provided for the creation of a specialized court and specialized prosecutor’s office to fight against online hate speech.
Opposition to the Loi Avia was widespread and spanned the French political spectrum. The most common objection was that it presented a disproportionate threat to freedom of speech. The Commission nationale consultative des droits de l’homme (CNCDH) (National Consultative Commission on Human Rights), an independent administrative authority, issued an advisory opinion opposing the bill, explaining that the threat of very high fines, combined with a short window to evaluate the illegal nature of flagged content, would cause online platform providers to err towards over-censorship. The CNCDH also objected to the idea that algorithms and moderators with little training would judge the legality of content instead of the judiciary. Additionally, the CNCDH believed that the Loi Avia would reinforce the dominance of large platform providers, as smaller providers may not have the means to apply the law.
The Conseil constitutionnel agreed that the provisions requiring platforms to remove hate speech on very short notice or face a large fine were unconstitutionally harmful to freedom of expression. In the view of the Conseil constitutionnel, freedom of expression and of communication is all the more precious because it is a condition of democracy and one of the safeguards for the respect of other rights and freedoms. Therefore, while the legislators may provide limits to prevent abuses of freedom of expression and communication that would harm public order and the rights of others, these limits must be necessary, proportionate, and suited to their goals. Hate speech, child pornography, and the promotion of terrorism constitute abuses of freedom of speech and communication that may be justifiably repressed by law, but the Loi Avia proposed to do so in a way that was neither necessary, proportionate, nor suited to that goal.
More specifically, the requirement to pull down child pornography or content promoting terrorism within an hour of being notified by the government was problematic because it circumvented the court system, turning law enforcement agencies into the judge of what would be legal or illegal content in these matters. The Conseil constitutionnel also objected to the obligation to pull down illegal hate speech within 24 hours of being notified by users, as that did not provide enough time for online platforms to adequately judge the legality of the content, especially given the risk that they would be flooded by notifications on the part of users. The potential fines, which were to apply for each failure to remove content, could quickly reach very high amounts, thus creating an incentive for online platforms to over-censure content. The Conseil constitutionnel therefore struck down these provisions, and all other provisions that were dependent on these for coherence. As a result, when it was signed into law on June 24, the Loi Avia contained only a handful of provisions, the most significant one being the authorization to create a specialized court to adjudicate cases of hate speech.