Clifford Chance

On 18 June 2020, the French Constitutional Council struck down most of the provisions of the French law against online hate and harmful content (the "Avia Law"). The below provides for a high-level synthesis of such decision and possible next steps.

We recently wrote about the proposal from French member of Parliament, Laetitia Avia, for a bill to strengthen the fight against online hate and harmful content with its plan to include the ability 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 French Constitutional Council has now ruled on the proposals.

Notice and take down obligations invalidated

The French Constitutional Council stroke down the following core provisions of the Avia Law:

• The obligation for publishers and hosting providers to remove or make terrorist or child pornography content inaccessible within the hour, once they have been notified of its existence by the competent administrative authority.
• The obligation for operators of content sharing platforms and search engines to remove or make certain types of hateful content inaccessible within 24 hours, once they have been notified of their existence by users.

According to the Constitutional Council, these provisions violate freedom of expression and communication. Notably, given the extremely short timeframe left to operators to take a decision on the reported content and the threat of stiff fines if they do not react, it is likely that operators would have tended to remove / deactivate most of the reported content, without conducting any assessment of its lawfulness, thus leading to a risk of excessive censorship.

The 'domino effect' for a large portion of the Avia Law

Given their connection with the two above-mentioned provisions, most of the other provisions are invalidated by the French Constitutional Council. This includes the French Audio-Visual's (CSA) power to inflict sanctions up to EUR 20 million or 4% of the worldwide annual turnover of an online platform, in case of breach of CSA's recommendations regarding the fight against online hate and harmful content.

Minor provisions not affected

These include:

• Creation of a public prosecutor's office specialised on the fight against online hate and harmful content;
• Simplification of the procedure for reporting unlawful content;
• Creation of an 'observatory' on online hate, managed by the CSA.

Next steps

Despite the massive invalidation, the French President of the Republic may decide to promulgate the remainder of the Avia Law in the coming days.