France’s Constitutional Council Censors the Repressive Part of the Avia Law

ER Editor: The ‘Avia’ Law, named after one of Macron’s MPs, lawyer Laetitia Avia (pictured below), due to take effect on July 1, 2020 is now effectively pointless and entirely defanged, for having been judged to violate the constitutional right to free expression. There are many people who are relieved about this.

As Judith Bergman explains in a May 2020 article for Gatestone:

On May 13, the French parliament adopted a law that requires online platforms such as Facebook, Google, Twitter, YouTube, Instagram and Snapchat to remove reported “hateful content” within 24 hours and “terrorist content” within one hour. Failure to do so could result in exorbitant fines of up to €1.25 million or 4% of the platform’s global revenue in cases of repeated failure to remove the content.

France’s free speech organisation, Article 19, had this to say:

ARTICLE 19 is concerned that the French proposal of a Bill on Countering Online Hatred – so called “Avia Bill” (Project de loi Avia) fails to comply with international free expression standards. We warn that the Bill entrenches private censorship of a wide range of illegal content at the expense of the courts, the 24 hour-time limit on content removals is too short and the sanctions meted out to eradicate online ‘hatred’ are disproportionate. ARTICLE 19 urges the National Assembly to reject the Bill. Instead, the French Government should explore alternative options to take a more holistic approach to concerns about the power and influence of the dominant social media platforms.

In rejecting the majority of this law, and in so doing dismissing the rest, online platforms such as Google, Youtube and Facebook cannot become a knee jerk judge and jury of what gets posted and thus ‘said’ online.

French judges can now resume their proper role as arbiters of what is permissible or not under the law.

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The Constitutional Council censors the entire repressive part of the Avia law

In particular, the Council members rejected the obligations put on social networks to remove illegal content within 24 hours, as this was not compatible with freedom of expression.

Laetitia Avia. Photo © Raphael Lafargue-POOL/SIPA

VALEURS ACTUELLES

A heavy slap in the face for the government. The Constitutional Council today censored the entire repressive part of the law against online hate, which was backed by LREM deputy Laetitia Avia, reports Le Monde. Les Sages notably rejected the law’s flagship proposal, i.e. the obligations on social networks to remove illegal content within 24 hours, considering that this was not compatible with freedom of expression. In doing so, they agreed with the many opponents of the text, who denounced the risks of over censorship by online platforms such as Facebook, Twitter, Snapchat or YouTube.

The law disavowed for its repressive component

The rejection of this particular measure represents a major setback for the majority, all the more so as Laetita Avia assured everyone last May that it represented “the heart of the text”. In particular, the Constitutional Council denounced the fact that social networks were, according to the law, supposed to make decisions on the basis of a simple report, without the intervention of an external authority such as a judge. In short, the High Court criticized the fact that the law encourages “online platform operators to withdraw content reported to them, whether or not it is manifestly illegal”, which would “undermine the exercise of freedom of expression and communication which is not necessary, appropriate and proportionate”. Finally, it is the entire, repressive part of the law that is censured by the Constitutional Council. The Constitutional Council also deemed incompatible with the Constitution the obligation imposed on these social networks to remove within one hour any child pornography or terrorist content reported to them by the authorities.

“It’s almost only the title that’s constitutional.”

The Avia law will therefore leave only the more preventive part, which consists of simply obliging these platforms to propose a mechanism for reporting content and to be transparent on the moderation activity, the number of online items removed, the deadline, the reason or the error rate, etc. Strongly opposed to the text, Senator Bruno Retailleau, LR Senator, welcomed this censorship by the Constitutional Council “following the referral of the LR group to the Senate”. “The title is almost the only part that is constitutional”, he ironically said on Twitter, before concluding: “All those who are attached to freedom should welcome it”. More broadly, many leaders on both the right and the left welcomed the decision.

Among them, Marine Le Pen, Jean-Luc Mélenchon, Nicolas Dupont-Aignan and Florian Philippot, who were all opposed to this “liberticidal” law.

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Original article

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