French Constitutional Court (partly) quashes Avia law on notice-and-take down for illegal speech

Le Déjeuner sur l'herbe

On May 13, the French Senate adopted in final reading the Law aimed at combating illegal speech on the internet, also known as Avia law after its original proponent, Laetitia Avia.

At the heart of the Law lie two notice-and-take down mechanisms: the first requires operators of online platforms to remove terrorist content and child pornography within 1 hour from receiving a notification from the competent administrative authority; the second mandates upon operators of online platforms to remove various types of hatred speech within 24 hours from receiving a notice from a user.

The Law was adopted despite Marc Zuckerberg’s best lobbying and an opinion from the European Commission, warning France that its provisions might be in breach of Arts. 3, 14 and 15 of the Electronic Commerce Directive.

This week, the French Constitutional Court partly quashed the Avia law, stating that the notice-and-take down measures envisaged therein jeopardise freedom of expression and of communication in a manner, which is not adequate, necessary or proportionate to the aim pursued.

Now held unconstitutional, Art. 1 of the Avia law was set to introduce amendments to Law No 2004-575 on confidence to the digital economy (“LNEC”), which transposed into French law the provisions of the Electronic Commerce Directive. As mentioned, according to Art. 1(1) of the Avia law amending Art. 6-1 LNEC, operators of online platforms, such as social media, marketplaces or search engines, would have had to remove terrorist content and child pornography within 1 hour from receiving a notification from the competent administrative authority. In turn, Art. 1(2) would have introduced a new Art. 6-2 in LNEC, whereby operators of online platforms should have removed various types of “manifestly illegal” hatred speech within 24 hours from receiving a relevant notice from a user. Such operators of online platforms are defined with reference to Art. L111-7(I) of the French Consumer Code and would have been targeted regardless of whether they are established in the French territory. At the same time, only the operators with a high number of unique visitors would have fallen under the scope of application of Art. 1 of the Avia law. The exact threshold was expected in an implementing degree but would have inevitably included such social media platforms as YouTube, Facebook or Google.

Failure to comply with take-down obligations entails criminal and administrative liability. Art. 6 of the Avia law, which remains in place after the Constitutional Court’s decision, increases the maximum criminal fine for individuals from EUR 75 000 to EUR 250 000, in addition to a one-year imprisonment. In turn, Art. 7 of the Avia law, which was recognised as unconstitutional, would have allowed the High audio-visual council (CSA) to impose an administrative sanction on online platforms that failed to comply with the notice-and-take down obligations. Similarly to amounts found in the GDPR, such sanction could be in the amount of up to 4% of the annual worldwide turnover or EUR 20 million.

During the drafting stage and as mentioned, the European Commission issued an opinion, warning the French government that the then bill and the prospective amendments to the LCEN Law, might be in breach of Arts. 3, 14 and 15 of the Electronic Commerce Directive.

The Commission brought to the attention of French legislators, first, that the proposed amendments to the required content of a notice would not be compliant with the minimum requirements, as set in the settled case law of the Court of Justice of the European Union. While under L’Oréal, C-324/09 a notification needs to be sufficiently precise and adequately substantiated, the new mechanism would have not required the notifier to identify the exact location of the relevant content. Indeed, Art. 1bis, to which the Commission referred with this comment and which was at a later stage replaced with more strict conditions, originally required the notifier only to describe the notified content, the reasons for its removal and, “where appropriate”, the URL through which such content may be acceded. Secondly, the safe harbour requirement under Art. 14 requires hosting providers to “act expeditiously” in order to avoid liability. While the exact duration of such expeditious reaction was never defined at the EU level, the European Commission remarked that a requirement to take-down the content within 24 hours, combined with the high level sanction in case of non-compliance and the reduced requirements for notices could have led to “disproportionate burdens for the online platforms and, in certain circumstances, a risk of over-removal and hence negative effects on freedom of expression”, in particular for intermediaries with limited resources. Thirdly, noted the Commission, a “stay-down” obligation, requiring to prevent the redistribution of removed or dereferenced content, would be in conflict with Art. 15(1) of the Electronic Commerce Directive, which prohibits the imposition of general monitoring obligations on the information transmitted or stored by information society service providers. The Commission also invited France to wait until the adoption of the EU Digital Services Act, promoted by the Commission and whose provisions on liability of intermediaries would overlap with the provisions of the Avia Law.

Despite the criticism from the European Commission, the contested measures were only amended in part, to remove the “stay-down” obligations. The draft law was adopted by the Senate on May 13. Before the Avia Law could be enacted, the French Constitutional Court, seized by 60 senators, found that both mechanisms in Art. 1 are unconstitutional and should be removed. Given the difficulties in assessing the manifestly unlawful nature of the content reported within the time limit, the penalty incurred from the first violation and the absence of a specific cause for exemption from liability, the notice-and-take down can only encourage operators of online platforms to withdraw the content notified to them, whether or not manifestly illegal (para. 19 of the decision). Therefore, the mechanism jeopardises freedom of expression and of communication in a manner, which is not adequate, necessary or proportionate to the aim pursued, that is, the protection of human dignity.

It remains to be seen whether Emmanuel Macron will enact the remaining parts of the Avia Law that regulate the increase of fines and some minor issues, including the creation of an “Online Hate Observatory”. In all this, the Avia Law might have the fate of the HADOPI law, vividly discussed in the late 2000s: after the “three-strike mechanism”, which allowed to disconnect infringers from the Internet, was removed from the HADOPI, the law’s scope of application became limited to (rarely) imposing low-level fines on copyright infringers.

Image credit: Tetiana Nikolayeva