New law to fight online hate speech to reshape notice, take down and liability rules in France

The French Parliament approved a new draft law (known as the "Avia law") on May 13th intended to combat online hate speech. This new legislation aims to fight the spread of hate speech and related content on the Internet, by creating quasi-instantaneous take down requirements and increasing liability and sanctions where these new “notice and take down” rules are not complied with. Most of the new rules will be applied to online platforms and search engines that reach a certain threshold of activity in France (this threshold will be specified by decree at a later date), regardless of where these companies are located or headquartered.

The French government intends that the law and associated decrees will be passed and published before summer, allowing the new rules to come into force from 1st July 2020.

Although the draft law has been approved, by the French Parliament, the Constitutional Council has been directed by the leading opposition party to review the draft law, which leaves room for further amendments by the Council before the law is passed.

This news alert highlights some of the main provisions of the draft law, as approved by the French Parliament on May 13th.

Instant withdrawal of web content related to child pornography or glorification of terrorism on any online service notified by French administrative authorities

French law already applies a specific regime relating to the removal of web content that glorifies or provokes terrorist acts or relates to child pornography. Under this existing regime, take down notification is carried out by French administrative authorities and is enforceable against any online services.

The current regime also authorises French administrative authorities to request internet services providers (ISPs) or search engines to block access to the web addresses containing the content in question if that content is not removed within the take down timeframe specified, or if the authority is not able to identify and notify the online services responsible for the publication of such content.

The Avia law does not significantly modify this specific regime but shortens the take down requirement by decreasing the actual timeframe for removal from 24 hours to 1 hour.

Withdrawal of hate content within 24 hours for online platforms and search engines

The Avia law introduces a new 24-hour timeframe obligation to remove hate content. The targeted contents that constitute “hate content” under the Avia law is also broad and notably includes any content which manifestly constitutes:

• slander or provocation to discrimination, hatred or violence against an individual or group of individuals based on their origin, ethnicity, race, religion, gender, or gender identity, sexual orientation or disability
• the glorification of criminal offences (in particular wilful injuries against life, wilful offences against the physical integrity of the person or calls to commit terrorist acts or public justification of terrorism)
• denial or trivialization of a crime against humanity, genocide, war crime or crime of enslavement
• sexual harassment contents or contents related to child pornography.

Without prejudice to the above specific regime at the initiative of the French administrative authorities as for child pornography and terrorism, hate content can be reported by anyone, provided the notification is compliant with the obligations set within the law. The Avia law significantly simplifies the existing general formal notification rules, especially when the notification concerns hate content.

This new take down obligation is however only enforceable against online platforms and search engines that reach a certain threshold of activity in France (this threshold is still to be set under a future decree). The qualification of an “online platform” is broad under the Avia law and includes any professional person or body offering an online service allowing the intermediation of multiple parties in order to exchange public content online.

Enhanced cooperation obligations from online platforms and search engines

In addition to the 24 hour take down requirement, online platforms and search engines falling in the scope of the new law will also be required to fight the dissemination of illegal content, in particular by complying with the guidance and deliberations of the French Audiovisual Council administrative body (CSA), for the performance of the following obligations:

• to set up a standardised and easily accessible notification system for hate contents
• to make available clear, detailed and accessible information describing the terms and conditions for content moderation and to inform users under fifteen years of age (or legal guardians) when registering for a service involving the processing of personal data about the civic and responsible use of said service and the risks incurred in the event of the dissemination of hateful content
• to acknowledge receipt without delay of the notifications they receive
• to inform the author of the notification of its follow-up and the motives of the take down decision (within 24 hours when the content is withdrawn or made inaccessible and within seven days otherwise)
• to implement internal recourse mechanisms allowing the author of the notification or the author of the withdrawn content to challenge a decision with which they disagree
• to inform public authorities of hate content notified to them
• to implement the appropriate technological and human means to process notifications as promptly as possible and to provide a report on the means employed and their performance
• to designate a contact person responsible for receiving requests from the judicial authorities and the CSA.

Filtering of hate content and new transparency obligations for online advertisers

The Avia laws also introduces new filtering rules for hate content. More specifically, when a court decision will have rendered a measure blocking access to an online service publishing a hate content, French administrative authorities will be entitled to require ISPs to prevent access to any online service mirroring the same content for the duration of the measures ordered by the court. The administrative authority may also ask search engines to remove the content deemed illegal from their search results listing.

The administrative authority shall also maintain a list of online services that have been subject to these blocking request through a court decision, which shall be made available to online advertisers (including ad servers) for the duration of the measures ordered by the court. As long as the online services subject to blocking are on this list, online advertisers still in relation with these “banned” services will be required to make public at least once a year the existence of these relations on their website and to include them in their annual report if they are required to provide one.

Increase of applicable fines and administrative regulatory powers

The Avia law increases the amount of the criminal fine applicable for any failure to comply with notice and take down rules. This maximum criminal fine is now of EUR 250,000 for an individual and can be increased to EUR 1,250,000 for companies. It is to be noted that this amount of fine will now apply to all different notice and take down regimes, meaning the regime applicable to child pornography and terrorism content, the new regime applicable to hate content, but also the general existing notice and take down regime applying to any manifestly illicit content which includes counterfeiting content.

Regarding the new regime applicable to hate content, the CSA will now be the regulatory body responsible to enforce and regulate this new regime with various investigation and regulatory powers awarded to this administrative body by the Avia law, including the right to request any relevant information to online platforms and search engines and notably the underlying principles and methods of any algorithms used to comply with the law.

But most importantly, the CSA can now issue a formal notice to comply to any online platform or search engine falling in the scope of the law within a timeframe that it determines. If the breach is not cured, the CSA may impose a penalty of up to 4% of the annual worldwide turnover or EUR20 million. Penalties and formal notices issued by the CSA may be made public under the terms and conditions it determines.

The Avia law replicates here administrative powers and penalties comparable to the ones granted to the French Data Protection Authority under GDPR.