French draft law against online hate speech ruled unconstitutional

On 18 June 2020, the French Constitutional Council rendered its highly awaited decision on the French draft law to fight hate speech on the internet (Avia Law).

The Council censored the wide majority of the text in its decision, finding that the draft law creates an unnecessary and disproportionate harm to the constitutional principle of freedom of speech and communication. 

More specifically, the Council ruled that the first article of the Act – which empowered French administrative authorities to request any online service to remove terrorist or child pornography content within one hour – was unconstitutional. According to the Council, this one-hour time limit did not allow sufficient time to assess whether the publication is genuinely unlawful or not, and would have led to a systematic take down of the content, hence violating freedom of speech. 

The Constitutional Council also censored the second article of the Act, requiring online platforms and search engines to take down “hate content” within 24 hours of a notification by any individual. According to the Council, the application of such a rule and associated sanctions suggests that operators would need to examine all reported content, regardless of how many take down requests were submitted. 

In doing so, the Council also considered that an operator must not limit itself to assessing the lawfulness on the basis of the grounds of the notification, but in relation to all grounds that could lead to its unlawfulness. According to the Council, the 24 hour timeframe outlined in the Act is not sufficient to allow operators to do this thorough examination, and would induce operators to take down all notified content, regardless of whether or not it is actually illicit content. This would then also constitute a violation of freedom of speech and communication. 

The knock-on effect of the Council cancelling the Act's two main provisions is that most of the other related provisions intended to support the implementation of these two obligations have been negated as well. This includes the new cooperation and transparency obligations applicable to online platforms and search engines also introduced by the Act. 

The remaining provisions of the Act following the Constitutional Council's decision are very limited. Of these, the most notable are the creation of a national French observatory on online hate, and the introduction of topic covering the fight against online hate speech in educational IT courses. 

The French Minister of Justice declared in a press release following the decision that the government will consider the opportunity to rework the text, taking into consideration the Constitutional Council's decision.