France’s draft legislation on hate speech (also called the “Avia law”) received a lot of criticism. The draft law was approved in July 2019 by the French National Assembly and will be examined by the Senate in December. It would oblige platforms to remove flagged hateful content within 24 hours or face fines. The Czech Republic first sent a detailed Opinion on the draft law. This was followed by the European Commission officially asking France to postpone the adoption of the law, mentioning in its letter a risk of violation of articles 3, 14 and 15 of the EU E-Commerce Directive.

EDRi, with the support of its members ARTICLE 19 and Access Now, submitted formal comments to the Commission to warn against the major pitfalls that the draft Avia law entails. The Commission joins EDRi in calling on France to halt the adoption of the legislative proposal. Leaving social media companies just 24 hours to do a reasoned assessment of a flagged piece of content officially appoints them as arbiters of legality and “the truth”, with heightened chilling effects on freedom of expression online. The fines companies face for non-compliance with the 24-hour deadline are disproportionate for platforms with limited resources such as not-for-profit community initiatives like Wikipedia.

Furthermore, the strict time cap will de facto lead to the use of filtering technology, resulting in over-removal of content. Because of the highly context-sensitive nature of hate speech, it is impossible for content filters to understand the nuances between actual illegal hateful speech and legal content. In addition, the draft law includes the obligation to prevent hate speech content from being re-uploaded. This will lead to a general filtering of all content posted on the platforms, which is not compatible with the E-Commerce Directive’s prohibition of general monitoring.

Lastly, the multiplication of national laws dealing with all sorts of “undesirable” content online leads to a confusing legislative patchwork in Europe. For companies and users it means uncertainty and blurs their understanding of which law applies to them. The Commission rightly suggests that the Avia law would overlap with the future Digital Services Act (DSA), which foresees European rules for how platforms moderate illegal content online. For this reason, EDRi provides comments on specific elements of the draft Avia Law to which the European Commission should pay particular attention when developing its own proposal.

EDRi: Contribution to the examination of France’s draft law aimed at combating hate content on the internet (18.11.2019)
https://edri.org/wp-content/uploads/2019/11/20191118_EDRiCommentsEC_FrenchAvialaw.pdf

A privately managed public space? (20.11.2019)
https://edri.org/online-content-moderation-privately-managed-public-space/

Content regulation – what’s the (online) harm? (09.10.2019)
https://edri.org/content-regulation-whats-the-online-harm/

How security policy hijacks the Digital Single Market? (02.09.2019)
https://edri.org/how-security-policy-hijacks-the-digital-single-market/

Hate speech online: Lessons for protecting free expression (29.10.2019)
https://edri.org/hate-speech-online-lessons-for-protecting-free-expression/

(Contribution by Chloé Berthélémy, EDRi)

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