French deputies must reject online censorship without a judge in one hour

On 9 February 2022, the Law Commission of the French National Assembly discussed the bill concerning the "dissemination of terrorist content online", transposing the European regulation on terrorist content online into French law. European Digital Rights (EDRi) and EDRi’s members La Quadrature du Net and Wikimedia France sent the following letter to the members of this Commission to call for the rejection of the bill prior to the discussion.

By La Quadrature du Net (LQDN) (guest author) · March 9, 2022

Letter to Members of Parliament: Reject the Anti-Terrorism Censorship Act

Dear Sir or Madam MP,

Next Wednesday, you will examine the proposed law on various provisions for adapting to the European Union law on the prevention of the dissemination of terrorist content online. 

This text aims to introduce into French law the provisions of the anti-terrorist censorship regulation 2021/784. This regulation, which is highly debated and contested at the European level, poses serious dangers for freedom of expression and information online. Above all, the measures it introduces are in direct opposition to the decision of the Constitutional Council of 18 June 2020, which largely censored the law aimed at fighting against hateful content on the internet as proposed by deputy Laetitia Avia. 

This issue was widely discussed at the beginning of February in the Law Commission and the rapporteur of the text failed to provide a valid explanation for disregarding the constitutional law.

European Digital Rights and Wikimedia France join La Quadrature du Net in the call to reject this text.

A text contrary to the 18 June 2020 decision of the Constitutional Council 

Indeed, in its decision of 18 June 2020, the constitutional judge expressly censured a provision identical to the one constituting the heart of the bill you are going to debate: the power given to the administrative authority to order any online platform to remove or block in one hour a content that this authority would have qualified as a terrorist, without the prior control of a judge. 

For the Constitutional Council, this removal obligation was a disproportionate infringement of the freedom of expression and communication, for two reasons: the determination of the illicit nature of the content was subject to the sole appreciation of the administration, and the challenge of this decision before a court had no suspension effect, even though no court would be able to rule in less than an hour. There was no guarantee that an illegal decision by the administration would not lead to the censorship of legitimate statements, leading to the violation of the most elementary principles of separation of powers.

Now, the bill that will be discussed in the committee uses the same mechanism since it allows the administrative authority to issue injunctions to remove content in one hour to “content providers and hosting” under penalty of a fine and without suspension appeal. 

Voted as it stands, the text would therefore be clearly contrary to the Constitution. Such an analysis is also shared in its 2020 activity report by a competent individual at the CNIL, i.e. the authority currently in charge of controlling the administrative censorship of websites and whose power would now be entrusted to the Regulatory Authority for Audiovisual and Digital Communication (ARCOM).

A provision regularly denounced by organisations and institutions 

The dangers of the regulation have been regularly denounced by many organisations and institutions. 61 European organisations and 11 French organisations asked for its rejection because of the risks it posed. 

On the one hand, the removal obligation will incentivise web actors to block uploads of any potentially illicit content and to adopt the broadest possible definition of terrorism in order to avoid receiving removal orders that are impossible to comply with in practice. This bill also gives ARCOM the possibility to impose on these providers “technical measures” that may be automated filters, in order to comply with one-hour removal orders. In practice, such a time limit and automated filters can only be managed by internet giants like Facebook, Google and Amazon, giving them the opportunity to expand their control over our online spaces.

On the other hand, the text reinforces the administrative censorship entrusted to the police, in this case, the Central Office for Combating Information and Communication Technology Crime (OCLCTIC). However, any request for removing content should only be issued by a judge, the sole guarantor of freedom of expression. Concrete examples have demonstrated in recent years the abuses to which this illegal and uncontrolled censorship could lead, such as the censorship of an activist website accused of an abusive interpretation of the notion of terrorism, finally invalidated by an administrative judge a year and a half after evidence was presented.

In conclusion, the adoption of the proposed law in its current configuration would not only have dangerous consequences for freedom of expression online, but also for trust in institutions. Voting for this text would directly suggest that the Parliament is rejecting the role of the Constitutional Council and knowingly violates the safeguards the Constitution establishes for the protection of our rights and freedoms. 

We invite you not to give in to this denial of the rule of law and to reject this text by voting against the single article of the bill.

Unfortunately, the text was approved by the responsible committee and shortly after by the National Assembly, rejecting all amendments that would have provided necessary safeguards. The text must still be examined by the second chamber, the French Senate before entering into force.

Letter in French can be found here.

(Contribution by: EDRi member La Quadrature du Net, translation in English facilitated by EDRi’s Policy Advisor Chloé Berthélémy)