Avia Law • Under the cover of fighting « hate content », freedom of expression is being murdered

Jean-Thomas Lesueur, CEO, and Cyrille Dalmont, Research Fellow at the Thomas More Institute

May 12, 2020 • Opinion •

The National Assembly will certainly adopt MP Laetitia Avia’s bill, aimed at better combating « hate speech » on the Internet, on Wednesday 13 May. Jean-Thomas Lesueur and Cyrille Dalmont denounce the subjective nature of the definition of « hateful content ».

Emmanuel Macron, his government and his majority definitely have a problem with freedom, especially freedom of expression. Shamelessly they have never stopped trying to control information in all its forms in our country.

On 15th January this year, it was the President of the Republic himself who, in his greetings to the press, said in a startling way: « We are faced with the fight against false information and misuse on social networks. Education remains the bedrock of this fight. So, we need to be able to respond to this contemporary challenge, collectively define the status of this or that document ». In the midst of the Covid-19 crisis, came the government’s initiative to impose a platform for the « re-information » or « validation » of trusted information covering this health crisis published in the media or on social networks. Called « Disinfox coronavirus », the platform was fortunately withdrawn on 5th May after the Journalists’ National Union (SNJ) filed an urgent appeal with the Council of State.

Today, the Avia bill to « fight hate content on the Internet » is coming back to the National Assembly, during the state of health emergency, to be examined in a public session (but under the restrictive measures adopted by the chamber in the context of a health crisis) on Wednesday 13th May. This bill – which has been widely criticized, not to say contested, by numerous organizations such as the National Consultative Commission on Human Rights (CNCDH), the League of Human Rights (LDH), the National Digital Council and even the European Commission – will once again try to force its passing by the government, which had initiated a fast-track procedure on the text in May 2019.

This bill is fundamentally and particularly liberticidal.

Unfortunately, it is more than likely that it will be adopted, given the government’s majority at hand and the low level of parliamentary mobilization, particularly for the right wing (apart from a few notable exceptions). It is also to be feared that it will be enforced in an extremely short period of time, if we are to believe the Secretary of State for Digital Technology, Cédric O, who stated during his hearing before the Assembly’s Cultural Affairs Committee on 5 May: « It is now a matter of ensuring that the implementing decrees are passed as quickly as possible so that this law can be applied »

This governmental rush, during the lifting of the lockdown, a sensitive period if ever there was one and which should mobilize all the attention of the executive, is causing questions and concern. Could it be that the government is anticipating the moment when it will be called to account for its disastrous management of the health crisis, by relying on tools that will help to promote a « public debate »? We don’t know and we don’t dare to want to…

In any case and whatever the circumstances, this bill is fundamentally and particularly liberticidal. The notion of « hateful content » is simply not acceptable as it cannot be legally defined. This opens the door to pure arbitrariness. As the writer and lawyer François Sureau wrote, « By relying on the notion of hatred, which is a feeling, which is a personal state of mind, the law from now on introduces penal repression within the inner conscience ».

As the writer and lawyer François Sureau wrote, « By relying on the notion of hatred, which is a feeling, which is a personal state of mind, the law from now on introduces penal repression within the inner conscience ».

The qualification of « hateful content » is therefore not only legally uncertain (because it is undefined and indefinable), but also totally dependent on the intention of its author at the time it is circulated, as well as on the preconceived ideas and convictions of the reader or the administrative authority that will request its censorship. The Avia law thus provokes a legal shift towards the criminalization of the moral intention of the author, as exposed in the science-fiction film Minority Report

It is obvious that the qualification of « hateful content » will not be the same according to one’s beliefs and convictions. For example, but this is only a hypothetical example: should the statement that the President of the Republic and the government knowingly lied about the absence of masks and their effectiveness in combating the epidemic be considered « hateful content »?

Some will argue that this is a simple observation, supported by facts brought to light by several journalistic investigations. Others will defend the government’s action with arguments and counter facts. Still others will simply see it as « incitement to hatred ». If the latter prevail, freedom of expression will be permanently removed from the register of fundamental freedoms in our country.