The French National Assembly passed a law (‘Avia law’) in order to curb the growth of hate speech on the internet. Although a draft of the law was first tabled in 2019, it was met with several criticisms [see, here and here], but in the light of the pandemic the government escalated the process and passed the law justifying it by highlighting the greater need to curb hate speech in these times. Recently, the French Constitutional Council ruled the majority of the law to be unconstitutional. In this piece, I analyse the Avia law in light of the decision of the Constitutional Council and its impact on freedom of speech and expression.

The Avia law required online platform operators that connect several people and facilitate sharing of content to take down any “manifestly” illegal content within 24 hours of being notified by anyone. Further, content concerning child pornography and terrorism was required to be taken down within 1 hour of notification. Non-compliance with these obligations would have resulted in fines amounting to hundreds of thousands of Euros and up to 4% of the global annual revenue of the platform in extreme situations.

The Constitutional Council emphasised the importance of freedom of expression and communication in a democratic set up. Accordingly, while it found the aim behind the sought restrictions to be legitimate, it held the restrictions to be disproportionate and not necessary. The primary reason behind this conclusion was the short duration prescribed for taking down of content, without giving an opportunity to seek prior opinion of a judge. This was considered important as they were required to decide on issues involving legal technicalities. This became even more difficult due to the possibility of numerous complaints being received by the platforms, and hefty penalties prescribed in case of non-compliance.

This decision, thus, deals with the fundamental balance to be struck between freedom of expression and the accompanying restrictions. Particularly in the French context, as noted by the EDRi, the French law concerning terrorism, including provocation and apology of terrorism, has been widely criticised for being vague and overbroad. It does not provide clarity as to the content that has to be censored. In such a scenario, assessment of content on these parameters within one hour would have set an unreasonable burden on the online platform. This is more so, as also noted by the court, when assessment of any content in light of a complex legal matrix within even a 24 hour deadline is considered a disproportionately high obligation.

Furthermore, the above onerous obligations, in effect, would have delegated censorship measures to be enforced by intermediaries, as warned against by UN Special Rapporteur Frank La Rue. Given the short timelines and high penalties, this would have led to a chilling effect on the platforms as they would tend to err on the side of caution. Accordingly, most platforms would have resorted to prior restraint and adopted automatic takedown mechanisms where content would be removed without conducting an adequate check.

A facet that the Constitutional Council did not touch upon is the impact of such prescriptions for small players or not-for-profit organisations. The burden is particularly high on them as they do not usually have the means to incorporate a 24/7 monitoring mechanism, either automatic or manual, which was in effect mandatory as per the Avia law. This was aggravated due to the presumption under the law of intent on the part of the platform in case proportional or necessary examination of the content is not carried out. Accordingly, they might have been carved out of the market due to the possible negative ramifications.

A reduction in public content sharing platforms would have further impinged upon the freedom of the public to exchange ideas and information. Some of the legitimate content that would have possibly then been curbed includes political dissent seeking accountability of the government. Therefore, it would have diminished the utility of intermediary platforms by lifting the cover of safe harbour and threatening them with penalties.

Hence, as nations across the world dabble with regulation of content on online platforms, many a time tending towards overregulation, this decision appears to be a silver lining. Hopefully, it would create a ripple impacting similar legislative attempts of regulatory overreach in other jurisdictions such as Germany that have been met with severe criticism for such proposals.