Posted on May 18, 2020

In France, What’s Illegal Offline Is Now Illegal Online

Mark MacCarthy, Forbes, May 18, 2020

If you publish what some people think of as hate speech in your newspaper in France, you can be brought to trial. You and the speaker of the offensive material. {snip}

France maintains the same dual liability for both publisher and speaker for movies, TV, magazines, and live entertainment. But not for the Internet. Right now, if you operate a social network in France and it is full of hate speech, the individuals who posted that material may face legal consequences in France, but you are unlikely to have any legal jeopardy there. This same asymmetry of liability applies to other categories of speech that are illegal in France, such as promoting terrorism.

This will change on July 1, 2020, when a new French law becomes effective. It requires online companies to take down certain “manifestly illicit” material within 24 hours of being notified. The law applies to hate speech, and material promoting terrorism or child abuse. The companies have to remove child abuse images and terrorist propaganda within one hour when notified by public authorities. They have duties of transparency and cooperation with public authorities. Penalties for violations could be as high as €125 million. They could be fined up to 4% of their global revenue if, after audits, the country’s audiovisual regulator finds serious and repeated flaws in their content moderation systems.


This new liability for illegal speech in France will get some nasty material off the Internet, but at the price of removing some content, perhaps a lot of content, that, on a close call, might be perfectly legitimate speech. European lawmakers seem increasingly comfortable with that trade-off, as they move their Internet policy toward greater content regulation.

In 2017, Germany passed the Network Enforcement Act (NetzDG), the online content take-down law that was the inspiration for the French version. It required Internet companies to remove manifestly illegal content within 24 hours and other illegal content within a week of being notified. The UK is finalizing its legislation that would impose a “duty of care” on Internet companies that would make them responsible for illegal and harmful content on their systems.

The European Union is in the final stages of passing its terrorist content directive that would require internet companies to take down terrorist material within an hour of receiving a notice from an authorized government agency of an EU member state. {snip}