French regulation on hate speech on online platforms has been widely deemed as unconstitutional by France’s Constitutional Council, the top authority in charge of ruling whether a new law complies with the constitution. It won’t come into effect as expected in the coming weeks.
As a reminder, the original law said that online platforms should remove within 24 hours illicit content that has been flagged. Otherwise, companies will have to pay hefty fines every time they infringe the law. For social media companies, it could have potentially cost them many millions of dollars per year.
Illicit content means anything that would be considered as an offense or a crime in the offline world, such as death threats, discrimination, Holocaust denial… The list of illicit content consists of what is more broadly called hate speech.
But the Constitutional Council says that such a technical list makes it difficult to rule what is illicit content and what is not. Due to the short window of time, online platforms can’t check with a court whether a tweet, a post, a photo or a blog post is deemed as illicit or not.
When you combine that with potential fines, the Constitutional Council fears that online platforms will censor content a bit too quickly.
“Given the difficulties to rule whether flagged content is evidently illicit, the incurred penalty with the first violation […], the impugned provisions can only encourage online platform providers to remove content that is flagged, whether it is evidently illicit or not,” the Constitutional Council writes.
As you may have guessed, over-censoring content infringes freedom of speech.
For the most extreme categories, terrorist content and child pornography, online platforms had to react within an hour according to the law that was voted a couple of months ago. The Constitutional Council uses the same wording to rule that online platforms have to over-censor as they can’t base their moderation efforts on court rulings. Free speech again.
Given that the rest of the law is based on those two processes, it is no longer relevant. It included transparency on moderation processes and an appeal mechanism.
“The goal was to reach a difficult compromise between preserving free speech and enforcing the rule of law online. The government acknowledges the decision of the Constitutional Council — it believes the legal text in question can’t reach this objective in its current form,” the government said in a statement.
The government and deputy Laetitia Avia say they’ll now base further work on today’s ruling. In other words, they’re going back to the drawing board.
Germany has already passed similar regulation and there are ongoing discussions at the European Union level.
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