The French Bill on Hateful Content Online

• Publication year: 2019
• Author: Dan Shefet*

THE FRENCH BILL ON HATEFUL CONTENT ONLINE

Dan Shefet*

EXECUTIVE SUMMARY

Content regulation in Europe is on the rise and especially content pertaining to hate speech. The first legislation directly addressing content on social media is the German Network Enforcement Act which entered into effect on January 1, 2018.

The law which was originally dubbed "The Facebook Law" has since inspired other countries and the latest example is the French hate speech bill which introduces even stricter regulation and furthermore aims at a revision of the general accountability directive in the European Union (e-Commerce Directive).

This article describes the hate speech bill currently under discussion in France and some of its most practical consequences for social media and lawyers.

THE BILL: BACKGROUND, LEGISLATIVE PROCEDURE, AND OBJECTIVES

The long-awaited French hate speech bill ("the Bill") was introduced in the National Assembly on March 20, 2019, and was passed on July 9, 2019. Its importance is evidenced by the fact that it was placed on a legislative fast track track procedure on May 2, 2019.¹

While the Bill was under its review the National Assembly proposed no fewer than 284 amendments. The Bill has now been transferred to the Senate (on July 24, 2019, a "Senate Rapporteur" was appointed) where it is expected to generate further controversy and give rise to further amendments. President Macron's party ("La République en Marche") does not have a majority in the Senate as it does in the National Assembly (which is controlled by members of his party, "Les Marcheurs"). The subject matter is clearly dynamic and that dynamism is likely to give rise to legal disputes and controversies in the future.

The final vote and thus the timing of the Bill's entry into force are unknown as of this writing. However, given the overwhelming majority vote in favor of the Bill before the National Assembly (434 votes in favor, 33 votes against, and 69 abstentions) it is expected that the Bill will ultimately pass.²

The stated objective of the Bill is to oblige social media and search engines to take down:

internet-based content advocating³ crimes against humanity, leading to the commission of acts of or apology of terrorism... or incitement to hatred, violence, discrimination or abuse of a person or group of persons on account of origin, alleged race⁴ or offence against fundamental rights in particular human dignity (apology of crimes, sexual harassment, slavery, pimping, child pornography), religion, ethnicity, nationality, sexual orientation, gender identity or disability, true or supposed" within 24 hours from receipt of notice from one or more users.⁵

Of particular note is that the current delimitation of the Bill's scope includes content directed at "a person" and not necessarily "a group of persons."

The Bill has been in the making since an announcement made by President Macron in March, 2018, about his intention to regulate incitement and hate speech on the Internet. This announcement ultimately led to a general revision of the e-Commerce Directive of 2001.⁶ President Macron's initiative was initially mainly directed against anti-Semitism but it quickly developed into a broad regulation of "hate speech." In accordance with Article 39 of the French Constitution, the Council of State reviewed the Bill and handed down its decision and recommendations on May 16, 2019.⁷ The decision of the National Assembly's Commission of Laws followed on June 19, 2019.⁸

The decisions of the Council of State and the Commission of Laws provide interesting insight into the legal aspects and the obvious technical challenges of defining "hate speech"⁹ given in particular its encroachment on free speech within the European Union. In this respect, the preparatory drafting of the Bill as summarized in the comprehensive Parliamentary Report of June 19, 2019,¹⁰ refers to the majority of European Union Member States' constitutions and the Charter of Fundamental Rights of the European Union, ¹¹ which arguably, "consecrate principles justifying a determined action against online hatred like respect of Human Dignity, the prohibition against discrimination and equality between men and women."

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Pointed attention to the subject of on-line hate speech was on display during the G7 Summit of Interior Ministers held in Biarritz, France, on April 4-5, 2019. A statement issued as a result of that Summit emphasized, "the need to improve the struggle against the use of the internet for terrorist or violent extremist purposes and demand takedowns within 1 hour from notification of terrorist content."¹² Further attention was directed at hate speech by the Christchurch Call to Action Summit in the aftermath of the shootings at a mosque in Christchurch, New Zealand, on March 15, 2019. ¹³

The Council of State and the Commission of Laws recommended a number of amendments but the general conclusion was that the Bill did not violate the French Constitution or international treaties. In particular, it was determined that the Bill did not contravene the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 ¹⁴ or the Declaration of the Rights of Men and Citizens of 1789. The Declaration contains explicit limitations of free speech in art 11.¹⁵

Indeed, this Bill is not the first in France to regulate speech. The most famous example is the Loi Gayssot (or "anti-denial" law) from 1990, which prohibits the disputing of the reality of crimes against humanity as defined by the International Military Tribunal of Nuremberg.¹⁶ This law was challenged before the United Nations Human Rights Committee in 1996 (pursuant to the Additional Protocol to the International Covenant on Civil and Political Rights)¹⁷ and was found to not violate Art. 9 of that Covenant.

The Bill now includes the recommendations from the Council of State and Commission of Laws and, crucially, it is noteworthy that search engines and social media are now treated alike. The Council of State had found that the original Bill violated the principle of equality — one of the foundational principles of the French Republic — by not including such search engines and hosts but by only applying legal obligations to only social media. The Bill in the Senate now addresses that finding by the Council of State.

From a legal mechanics standpoint, under French law the Bill modifies Law No. 2004-575 of June 21, 2004,¹⁸ which implements the European Union e-Commerce Directive into domestic French law.

MAIN PROVISIONS OF THE BILL

As previously noted, the Bill applies to social media, hosts, and search engines alike (collectively referred to as "Online Platforms"). Key elements of the Bill include the following:

• Online Platforms will be under an obligation to take down or make inaccessible/delink "manifest hate speech" ("contenu manifestement haineux" ) within 24 hours of receiving notice of the presence of such content. Actual knowledge (a key legal concept under the e-Commerce Directive) is assumed when notification is made by an individual submitting his/her name and email address or by a public agency (the formalistic reporting requirements in Article 6 of Law No. 2004-575 of June 21, 2004, transposing the e-Commerce Directive into French law is simplified as it is intended to allow users to actively contribute to identification and flagging of content). A simplified reporting/notification mechanism is mandated (i.e., a "direct notification button" function).
• Online Platforms must invest in adequate human and technical resources combatting online hate speech and they will be subject to oversight by and compliance with "Recommendations" from the Conseil Supérieur de l'Audiovisuel ("CSA"), or Superior Council of the Audiovisual.¹⁹ In the event such actions are not taken, the CSA may first put the Online Platform on notice and in case of continued non-compliance the CSA may impose a financial penalty taking into account the seriousness of the infringement and whether the infringement is a repeat or first-time offense.
• Financial penalties may reach 4% of total annual worldwide turnover for the previous year.²⁰
• A judge may order removal, blocking, or delinking of the hate speech. It should be noted that the administrative blocking prerogatives available to address terrorist sites that have been in force since the Bataclan attacks in Paris in November, 2015, are unaffected by the Bill.²¹
• Online Platforms must designate a legal representative within French territory. The representative is personally responsible for the transfer to local law enforcement of data enabling identification of the author of hateful content (legal authority already provided by Law No.2004-575 of June 21, 2004, but now reinforced).²²
• This legal representative will be responsible for receiving complaints, requests from authorities, and court orders on behalf of the company. ²³
• Online Platforms must publish compliance information annually and must also obtain identification data on their users. This user identification data must be made available to law enforcement. In the event an Online Platform does not lift anonymity it may incur a fine of €250,000, with an additional option to sentence the legal representative to up to one year of prison.
• The government will publish an annual report that will contain information on compliance with and enforcement of the law as well as the human and financial resources devoted by Online Platforms to combating illegal content, including education, prevention, and assistance of victims.
• An additional tax is levied by virtue of Articles 575 and 575(a) of the General Tax Code to cover the administrative costs of enforcing the law. This should not be confused with the so called "Google Tax" which was passed on July 24, 2019, and is now under severe challenge from the Trump Administration.²⁴
• A specialized tribunal and prosecutor will be created for the prosecution of all cyber- related crimes.
• A new penal offence has...