Following the recent terrorist attacks that occurred in Paris, the French Prime Minister Manuel Valls asked the Minister of the Interior, Bernard Cazeneuve, to offer up suggestions for strengthening the fight against terrorism on the Internet and social networks, which may be used for indoctrinating, getting in touch and acquiring techniques enabling the acting out of terrorist acts. Besides the adoption in the coming months of a law on intelligence, the French Government wants from now on to fight digital propaganda by increasing the number of cyber patrols and improving cooperation with Internet players.
France’s legal arsenal to fight terrorism, notably on the Internet, was already strengthened last autumn with the adoption of Law no. 2014-1353 of 13 November 2014, called “loi Cazeneuve”. This law notably added “incitement to commit acts of terrorism and their glorification” to the list of contents being particularly serious for which hosting providers are required to set up easily accessible and visible measures enabling anyone to report such content. Besides, they must contribute to the fight against the propagation of this content, make the means they devote to such fight available to the public and promptly inform public authorities of any unlawful activities that are reported to them.
The real innovation of this law nevertheless lies in the possibility for the administrative authority to request that editors or hosting providers withdraw unlawful content when “the requirements of the fight against incitement to commit acts of terrorism or glorification of such acts […] justify it”. In the absence of withdrawal within 24 hours, the administrative authority may request Internet service providers to prevent access to the concerned websites. It may also request search engines and electronic directories to dereference these websites. Furthermore, under some conditions, it is provided that the administrative authority may directly request that the concerned websites be blocked, without having requested the withdrawal of the unlawful contents beforehand to editors or hosting providers. In this case, blocking the website would thus no longer be only a subsidiary measure, used when editors or hosting providers do not withdraw the unlawful content promptly enough, but a main measure.
The new Article 6-1 of the law for trust in the digital economy does not, in principle, require that a court order blocking a website, even though this measure is particularly detrimental to freedom of speech. However, Article 6-1 provides that the procedure will be controlled by a qualified person, who may recommend that the administrative authority stop blocking websites if he/she observes irregularities. The qualified person is named by France’s data protection authority, the CNIL. He or she may only refer the matter to the appropriate administrative court, in the scope of summary proceedings or upon a motion, in cases where the administrative authority does not follow the qualified person’s recommendation. The implementing decrees for this law were published on 5 February 2015 so that this new law is now in force.
The French Government also wanted to remind hosting providers that they are responsible for promptly withdrawing manifestly unlawful contents that is reported to them, either by the authorities, or by Internet users. The French Prime Minister Manuel Valls said, on 21 January, that no legislative change was on the agenda concerning the liability regime applicable to hosting providers. In any event, this regime results from the implementation into French law of the E-Commerce Directive so that the French legislator has limited room for manoeuvre in this regard. A revision of this status should thus necessarily occur through a reform of the E-Commerce Directive, which several reports recently requested, notably the Annual Report of the French Council of State, published in September 2014 and dedicated this year to digital technology and fundamental rights. In the meantime, the French Prime Minister solemnly appealed to the “moral responsibility” of hosting providers to join the fight against acts of terrorism. As for the Minister of the Interior, he was scheduled to meet Internet giants on 20 February in order to make them aware of these issues and to convince them to better contribute to surveillance and control of communications on the Internet. This awareness is all the more essential as the French idea of the freedom of speech is more restrictive than the one in force in the United States, where such freedom is protected under the First Amendment to the United States Constitution and often claimed by the platforms, which use it as one of the core values of the Internet.