June 19, 2020 •
The Constitutional Council has censored most of the provisions of the highly controversial Avia law, which are deemed to violate freedom of expression. This decision is good news, Judge Cyrille Dalmont of the Thomas More Institute said, because it was aberrant to « penalise a sentiment ».
You had stated, particularly in our columns, that the Avia law threatened fundamental freedoms. Does the Constitutional Council’s ruling of Thursday 18 June prove you right?
I believe that we can collectively welcome the decision of the Constitutional Council, which has just taken a very strong position by fully or partially censoring no less than ten out of nineteen articles of the law « aimed at combating hateful content on the Internet », known as the Avia law, adopted on 13 May.
By solemnly declaring that « the legislature has undermined freedom of expression and communication in a way that is inappropriate, necessary and proportionate to the aim pursued », the position of the Constitutional Council, which is both very firm and explicit, reinforces and confirms the arguments of the defenders of public freedoms and fundamental rights, including the Thomas More Institute, who were unable to influence the legislature’s position throughout the process of drafting the text.
But it gets better: perhaps we have just witnessed the creation of a new constitutional right, which could be described as a « right of access to social networks ». The decision of the Constitutional Council seems to open a loophole in the value of the General Conditions of Use (GCOU) of social networks, behind which social networks systematically take refuge in the event of a dispute with users over freedom of expression. The Council in fact endorses Article 11 of the Declaration of the Rights of Man and of the Citizen (DDHC), which has constitutional value, the fact that « in the current state of the media and in view of the widespread development of online communication services to the public and the importance of these services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access and express oneself »… No doubt law school students will be commenting on this decision for many, many years to come!
Was this censorship foreseeable?
It was very difficult to give an early opinion on the position that the Constitutional Council would take on this subject, because of the « state of health emergency » (in force, I would remind you, since 24 March and extended until 10 July).
Classically, the Council of State, the Court of Cassation and the Constitutional Council tend, on the basis of the theory of « exceptional circumstances » (due to the importance of the dangers that a crisis situation can cause), to authorise the government to derogate from the legal order of our rule of law. It is therefore rather a pleasant surprise that, following the decision of the Council of State on 13 June last concerning freedom of demonstration, the Constitutional Council reaffirms the need for our rule of law to be restored to its norm, even if the state of emergency is still in force.
Moreover, it can be assumed that the fact that the two major projects of the government at the end of the confinement are for one potentially prejudicial to the freedom of expression, information and the press (the Avia law) and for the other potentially prejudicial to the freedom of movement and privacy (the StopCovid application), explains the very strong position of the guardian of the constitution.
The question in particular of the prohibition of « hatred » seems to arise: in French law, can a feeling not be penalized?
Penalizing a feeling is an intellectual aberration. It touches the intimate thought of the individual. So why not forbid love or empathy, as in The Best of All Worlds? Taking such a step would open the way to the creation of a legal theory of the « good citizen » (one who thinks well) as opposed to the « bad citizen » (one who thinks badly). It would be to approach dangerously, in a version that is certainly softer and more embedded in the thinking of the populations that should be educated for the good of all, the logic of the Chinese « social credit » system launched in the 2000s.
It is worth remembering that the debates on the Avia law have been followed by many jurists around the world. Many observers have been extremely attentive, not to say worried, about this drift towards freedom of expression that this text represented. Indeed, when a country that likes to call itself a « country of human rights » goes against the very philosophy of Article 19 of the 1948 Universal Declaration of Human Rights (« Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers »), it is a symbol that counts. The 1948 declaration is certainly not directly applicable in French law, but it is at the origin of all the great post-war charters and declarations of rights… This is no small thing.
Finally, the notion of « hateful content » is totally dependent on the author’s intention at the time it is broadcast, but also on the a priori and convictions of the reader or the administrative authority requesting censorship. It was quite clear that in such an ocean of uncertainty, the qualification of « hate content » would be perfectly arbitrary and that censorship would become the rule – if only out of elementary caution on the part of social networks. This is why the Constitutional Council describes the legislator’s intention as an infringement of freedom of expression that is not « appropriate, necessary and proportionate to the aim pursued ».
Beyond the substance, it is also in the mechanism that it intended to implement that the Avia law was censored, why?
By its decision, the Constitutional Council puts the « church in the center of the village » back into law, so to speak, by reminding the legislator of the inescapable role of the judge in assessing and respecting the proportionality between potentially reprehensible facts and the preservation of the fundamental freedom that is freedom of expression. Delegating the task of monitoring, assessing and withdrawing comments on its network to a private operator, which will have « the obligation to withdraw […], once a person has reported illegal content to it » without it being « subject to the prior intervention of a judge or to any other condition », could only lead to almost systematic censorship of all reported comments.
The Constitutional Council therefore logically concluded that « in view of the difficulties in assessing the manifestly unlawful nature of the content reported within the prescribed time limit, the penalty incurred from the first infringement and the absence of a specific ground for exemption from liability, the contested provisions can only encourage online platform operators to withdraw the content reported to them, whether or not it is manifestly unlawful ».
It is quite clear that delegating to private, and moreover foreign, operators a kind of « justice » and « police » power as regards the freedom of expression of the French raised an intrinsic constitutional problem.
Beyond these purely legal aspects, however, it is necessary to question this form of increasingly systematic renunciation by the State to assume its regalian functions (of which « dispensing justice » is one of the most eminent) through an overabundance of increasingly liberticidal standards, the implementation of which almost always depends on foreign digital technologies.