Avia Law: Constitutional Council refuses censorship without a judge

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Victory! On 18 June 2020, after year-long struggle, the Constitutional Council has declared almost the entire law against online hate contrary to the Constitution. Beyond its decision, the Constitutional Council refuses the principle of censorship without a judge within an imposed time limit of one hour or twenty-four hours.

While claiming to combat hatred, this law was in fact organising abusive Internet censorship: the police could order censorship of terrorist content within one hour; the major platforms had to censor any content that could be hateful within twenty-four hours. The Constitutional Council made a clear decision: this principle of censorship within a fixed period of time is contrary to the Constitution. As we pointed out in our amicus curiae sent to the Constitutional Council, such a fixed deadline for any type of content considerably increases the risk of abusive, political censorship. The Council stresses that only manifestly illegal content can be removed without going through a judge; however, recognising that content is manifestly illegal requires a minimum of analysis, which is impossible in such a short time.

Our victory is a heavy defeat for the French government. It is paying the price for an ill-considered method: while Facebook boasted about its “effective” fight against hate by employing armies of people and machines to censor content on its platform, the French government launched a “Facebook Mission” to build on this. The government then commissioned Ms. Avia to draft a law to impose Facebook’s toxic, algorithmic censorship model on the entire Internet. This attempt was as useless as it was dangerous and unconstitutional.

Above all, the government intervened at the last moment to have the European regulation against terrorist propaganda “adopted in advance” in France, as this other text also provides for censorship without a judge within one hour. While the European debates on this subject are far from over and no compromise has been reached, France wanted to confront the European legislator with a fait accompli by attempting this risky tour de force at the national level. Its gamble was entirely lost. While the debate on the European regulation continues, France has lost most of its credibility.

To combat online hatred, another strategy, respectful of fundamental freedoms and a free Internet, was possible: that of interoperability. This path, taken up by numerous amendments from both right and left during the examination of the Avia law, had been rejected by a government incapable of truly opposing the giants of the Net. Indeed, the problem of online hate is accentuated by the economic model of the major platforms, which have an interest in putting forward conflicting, even hateful, content that will make people react and stay on their platforms. Legislators have refused to address this issue, going astray in their desire for censorship. It must now draw the consequences of this disavowal by the Constitutional Council.

This victory is for us the end of a year-long struggle, at your side, trying to convince Parliament that this law was contrary to the Constitution. The Constitutional Council heavily sanctions the amateurism of the government and the En Marche deputies who have renounced all serious legislative work.

Update 28 September 2020: Hate-Speech Law stricken down in France comes back at EU level