Since the early 2010s, and even more so since the Paris attacks of 2015, France has taken a prominent role as web and speech regulator in the online fight against terrorism, both at the European and international levels. France emerged as a driving force of the closer union between tech companies and state authorities, and built a heavy legal arsenal to specifically track and counter jihadist communications and propaganda online.
Successive legislative proposals of the Macron government contain provisions that intend to circumvent judicial review by giving the power to administrative authorities to delete online content or block websites. Yet, these measures are at odds with the French tradition of (judicial) protection of freedom of expression, according to which the judiciary’s role is to protect basic rights and freedoms of individuals, including from administrative practices that are illegitimately intrusive. Nonetheless, because France has a semi-presidential regime and because presidential and parliamentary elections take place more or less at the same time, the executive has a strong majority in Parliament. Hence, the legislative power performs a very soft check, if any, on the executive. As a result, the latter’s legislative proposals more or less systematically successfully go through parliamentary deliberation.
If the legislature is not a counter-power to the executive, the judiciary, and in particular the French Constitutional Court does perform a check on the legislative proposals aiming to expand the legal arsenal to counter terrorism online. With a new law against online hatred, the Macron government wanted to implement a cooperative regulation that would require tech firms to spot, among other types of hate speech, terrorist communications online and delete them within twenty-four hours of publication (Article 1 of the legislative proposal). Another key provision (Article 8 of the legislative proposal) aimed to allow administrative authorities to ask an internet operator to block access to a website. The condition for administrative authorities to take such measure was that the content of the website be of similar content that, in another case, judicial authorities found to be in violation of some provisions of the criminal code (sexual harassment, diffusing images of a minor with a pornographic aspect, or diffusing content of violent character inciting terrorism).
A decision taken on 18 June 2020 showed French supreme judges to hold the core provisions of this law unconstitutional on the basis of Article 11 of the Declaration of the Rights of Man and of Citizens of 1789 (which has constitutional value). Regarding Article 1 of the proposal, the supreme judges considered that (i) having the sole administration, (ii) without any judicial review, (iii) determine the illicit character of the contentious contents, (iv) without necessarily having “manifest” elements, and (v) leading to their deletion within a very short period of time of twenty-four hours, would disproportionately restrict freedom of expression.
Supreme judges also found unconstitutional Article 8 of the proposal. However, instead of engaging in substantive review of the measure (i.e. rather than considering the unconstitutionality of giving administrative authorities the power to order the blocking of websites in and of itself), the supreme judges justified their finding on the basis that the first provision was found unconstitutional, therefore any provision referring to it should be found unconstitutional as well. The law was adopted without these two key articles on 24 June 2020.
A few months and a major terrorist attack later, the Macron government wants to revive provisions against online hatred that were found unconstitutional last June. In the lead-up to his murder, French history teacher Samuel Paty had been the object of “public lynching” on social media following his class on freedom of expression. On 8 October, the father of a student at the school shared a video on Facebook calling for action against the teacher. The video was then shared on messaging forums, from Messenger to WhatsApp.
The proposed law “consolidating the respect of the principles of the French Republic” of December 2020 contains a provision allowing administrative authorities to order the blocking of a website. As mentioned above, this measure was contained in Article 8 of the law against online hatred before being censored by the Constitutional Court in June 2020 for containing a reference to the other provision on content deletion that was found unconstitutional. The government, as it pushes again for the adoption of a provision that was found unconstitutional, apparently expects that the supreme judges will not find the measure unconstitutional now that it is not attached to the provision held unconstitutional.
However, this expectation underestimates the attachment of the French Constitutional Court to judicial review. Counter to the French executive and legislative majority’s expectations, the Constitutional Court will now engage in a substantive review of this measure and this review will most likely reaffirm the protection of the judiciary’s role of protecting liberties and ensuring that administrative intrusion is not excessive. We will know in a few months if indeed the “Sages” of the Constitutional Court will consider that, although the objective to use online content to mitigate offline threats is understandable, it should not be done by trampling on the crucial role of the judiciary in exercising control over measures that potentially affect human rights.