French Avia law declared unconstitutional: what does this teach us at EU level?

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French Avia law declared unconstitutional: what does this teach us at EU level?

Post by IceCube » Mon Jul 06, 2020 7:01 pm

On 18 June, the French Constitutional Council, the constitutional authority in France, declared the main provisions of the “Avia law” unconstitutional. France’s legislation on hate speech was adopted in May despite being severely criticised from nearly all sides: the European Commission, the Czech Republic, digital rights organisations and LBGTQI+, feminist and antiracist organisations. Opposed to the main measures throughout the legislative process, the French Senate brought the law before the Constitutional Council as soon as it was adopted.

The Court’s ruling represents a major victory for digital freedoms, not only for French people, but potentially for all Europeans. In past years, France has been championing its law enforcement model for the fight against (potentially) illegal online content at the European Union (EU) level, especially in the framework of the Terrorist Content Regulation, currently in hard-nosed negotiations. The setback received after the Constitutional Court’s decision will likely re-shuffle the cards in the current and future European content regulation-related files.
The Avia law is “not necessary, appropriate and proportionate”

In its decision, the Constitutional Council held that certain provisions infringe “on freedom of speech and communication, and are not necessary, appropriate and proportionate to the aim pursued”. Looking at the details of the ruling, the following legal measures in the law that were used to strike down seemingly illegal content were quashed by the Court:

- The sort of “notice-and-action” system by which any user can flag “manifestly illegal” content (among a long pre-set list of offenses) and the notified online service provider is required to remove it within 24 hours,

- The reduction of the intermediary’s deadline to remove illegal terrorist content and child sexual abuse material to one hour after the receipt of a notification by an administrative authority.

- All the best-efforts obligations linked to the unconstitutional removal measures above such as transparency obligations (in terms of access to redress mechanisms and content moderation practices, including the number of removed content, the rate of wrong takedowns,…)

- The power given to the Conseil supérieur de l’audiovisuel (ie. French High Audiovisual Council) with an oversight mandate to monitor the implementation of those best-efforts obligations.

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