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GDPR-like sanctions to fight against Online Hate and Harmful Content

New Frech Law comes with several onerous obligations

01 June 2020

In the wake of the alarming spread of hate speech, terrorism, violence and child pornography over the Internet, French member of Parliament, Laetitia Avia, proposed a bill to strengthen the fight against this type of content, notably through the involvement of the French audiovisual regulator (the CSA) which will have the faculty to issue stiff penalties up to EUR 20 million or 4% of the worldwide annual turnover of the online platform (whichever the higher), just like data protection authorities in the context of the GDPR.

The text of the new law is strongly inspired by the German NetzDG law which entered into force in January 2018, and notably aims at compelling online platforms to withdraw or de-reference any hateful content notified to them by users or public authorities.

The French bill (the Avia Law) was passed into law by the French Parliament on 13 May 2020. It mainly amends various provisions of the 21 June 2004 French Law for Confidence in the Digital Economy (LCEN - Loi n° 2004-575 pour la Confiance dans l'Economie Numérique), which deals with the responsibility of online players (e.g. Internet service providers, hosting providers, publishers).

The law is not currently in force due to a consitutional challenge. French Republican senators have referred the law to the French Constitutional Council (Conseil Constitutionnel) in order to challenge its constitutionality, notably in relation to freedom of speech, the violation of the EU e-commerce directive and the principle of proportionate sanctions.

The French Constitutional Council has one month (or 8 days if the French Government requires so for emergency reasons) to review it.

Below we provide a high-level overview of the main aspects of the Avia Law in the form of a Q&A, followed by a note on its controversial aspects. 

Main aspects of the Avia Law
1- Personal scope

Q: To whom does the Avia Law apply?

The Avia Law applies to different online actors, which include social media, search engines, web editors, website hosting companies and internet service providers. However, some of its provisions only apply to specific players. For instance, the Avia Law sets out cooperation duties in relation to the fight against hateful content, that only apply to social media and search engines.  It also requires web editors and website hosting companies to comply with certain obligations regarding notification of hateful content online, which are different from those applicable to social media and search engines.

2 – Cooperation duties regarding hateful content online

Q: What are these cooperation duties?

The Avia law sets outs cooperation duties for social media and search engines. These operators must notably:

  • Comply with CSA's decisions regarding hateful content online.
  • Provide users with a user-friendly notification system, that is directly accessible on their platform. This system should enable every user to notify illegal content.
  • Acknowledge receipt of a notification without delay. The receipt should mention the time and date of the notification, as well as the content to which it relates.
  • Inform the user, who has notified a content, in respect of which course of action it has taken regarding the content and the reasons behind such a decision:
    • If the operator decides to remove the content or make it inaccessible, it will inform the user of this decision within 24 hours of receiving the notification.
    • If the operator  decides to keep the content online, it will inform the user of this decision within 7 days of receiving the notification. If the user disagrees with that decision, s/he is entitled to challenge that decision.
  • Have the appropriate human and material resources (i) to ensure that all notifications are processed within the best possible timeframe and (ii) to prevent online content from being unfairly removed.
  • Inform the user who uploaded the hateful content that such content has been removed and why, and that s/he may be liable to civil or criminal penalties. The user should also be informed that s/he can challenge the operator's decision to remove the content.
  • Make available to all users detailed information, that is clearly visible and easily accessible, explaining how illegal content will be dealt with by the online actor.
  • Provide understandable information  to users, who are less than 15 years old, on how the online service should be used and on the legal risks s/he runs if s/he decides to publish hateful content online.

Q: What are the penalties for non-compliance with these provisions?

Where social media or search engines breach their cooperation duties, the CSA may impose an administrative fine, which can amount to EUR 20 million or 4% of their worldwide annual turnover (whichever the higher). The CSA will determine the amount depending on how serious the breach is and on how many times it has occurred.

3- Notification of online hateful content

Q: What are the duties of online players once they have been notified of the existence of hateful content?

Online actors must remove or make hateful content inaccessible as follows:

  • Website hosting companies and web editors must remove or make hateful content inaccessible within the hour, once they have been notified of its existence by the Central Office for Combating Information and Communication Technology Crime (the OCLCTIC) and when such content pertains to terrorism or child pornography. Online platforms must also inform the relevant public authorities on which course of action they have chosen further to such notification;
  • Social media and search engines must remove or make hateful content inaccessible within 24 hours, once they have been notified of its existence by one or more users and when such content pertains to the glorification of certain crimes, discrimination, unprovoked insults, hatred, violence, child pornography, denying crimes against humanity, sexual harassment, etc.

Both time limits run from the receipt of the notification by the concerned operator.

Q: What should social media and search engines also do if they decide to remove hateful content or to make it inaccessible?

In addition to the above, the Avia Law requires that social media and search engines  replace the hateful content with a message stating that it has been removed.

The removed hateful content must be kept by the concerned social media or search engine for for the possible prosecution of the concerned criminal offences. A decree will specify how and for how long this type of content should be stored.

Q: What are the penalties for non-compliance with these provisions?

Failure by website hosting companies, web editors, social media and search engines to comply with their obligations to remove hateful content may result in a criminal fine of up to EUR 1,250,000 (regarding legal entities).

4 – Other

Q: What are the other key provisions of the Avia Law?

The Avia Law contains other provisions regarding the fight against hateful content:

  • The OCLCTIC may ask internet providers to prevent access to an online service displaying content that has been regarded as illegal by a court ruling.
  • A specific court will also have jurisdiction over disputes regarding certain types of hateful content.
  • An Online Hate Observatory (Observatoire de la haine en ligne) will monitor and analyse the evolution of hateful content over time.
The Controversy around the Avia Law

"Under the guise of combating hateful content, it is freedom of expression that is assassinated" they say.

Certain senators and NGOs, such as La Quadrature du Net have advocated that the adoption of the Avia Law may pose a threat to freedom of speech. Indeed, they argue that, adopting a cautious approach, online platforms may end up removing lawful content automatically to avoid being fined. Thus, there is a fear that online platforms would be granted too much power in censoring free speech online.

We now await the decision of the French Constitutional Council, expected in the second half of June.