Legislative efforts to regulate online platforms are underway in many countries. Unfortunately, instead of reflecting about how to put users back in control of their online experiences and how to foster innovation, many governments are opting to make online platforms into the new speech police.
The French Avia Bill is an example of such privatized enforcement: it forces social media platforms to take down content which could qualify as illegal hate speech within 24 hours, or as quickly as within an hour of its reporting, depending on the type of speech involved. The new legal act against hate speech will have a profound impact on freedom of speech of users, and may inspire the EU’s ongoing work to reform the rules governing online platforms through the so-called Digital Services Act.
On May 18, 60 French senators filed a challenge with the French Supreme Court against the Avia Bill before its promulgation, and after it passed in the National Assembly on May 13, 2020. The Court has to issue a decision by June 18, 2020. EFF teamed-up with the French American Bar Association (FABA) and Nadine Strossen, the John Marshall Harlan II Professor of Law, Emerita at New York Law School, to file an amicus brief [PDF, in French] with the French Supreme Court.
We argue that this bill is unconstitutional because the take down timing requirements will cause over-censorship of perfectly legal speech. The bill imposes an unconstitutional prior restraint regime over speech, and leads to a privatization of police power. The bill also conflicts with the European Union’s Directive on Electronic Commerce, which was already brought up against the French government by the European Commission prior to the Bill’s adoption.
The authors of the amicus brief warn the Court’s justices that the Avia Bill represents the continuation of a failed public and criminal censorship policy which has been unable to remedy the so-called social harms that hate speech has been claimed to generate.