KENZO TRIBOUILLARD / AFP
The logo of the Constitutional Council (illustration photo taken on March 12, 2019).
POLITICS – Seized by the deputies of rebellious France, the Constitutional Council gave the green light, this Saturday, August 13, to the LREM bill, adopted at the end of July and providing for compelling publishers and web hosts to remove so-called terrorist content within the hour.
In their appeal, the Insoumis considered that the text carried “a manifest attack on the freedom of expression and communication guaranteed by article 11 of the Declaration of the Rights of Man and of the Citizen of 1789”.
In its decision, the Constitutional Council considers that “the contested provisions do not violate the freedom of expression and communication” and “consequently finds them to be in conformity with the Constitution”. The Elders stress in particular that terrorist content “constitute abuses of the freedom of expression and communication which seriously undermine public order and the rights of third parties”.
Decision n° 2022-841 DC of August 13, 2022[LawonvariousprovisionsforadaptationtoEuropeanUnionlaw…[Loiportantdiversesdispositionsd’adaptationaudroitdel’Unioneuropée…
— Constitutional Council (@Conseil_constituent)
The withdrawal order must also “include not only the reference to the type of content concerned, but also a sufficiently detailed motivation”welcome the Sages.
This text, which adapts a European regulation, partly takes up one of the flagship provisions of the Avia law, widely challenged by the Constitutional Council in July 2020.
Possibility of issuing cross-border withdrawal orders
The law requires the withdrawal of “terrorist content” online within the hour to all hosting service providers and introduces the possibility for national authorities to issue cross-border withdrawal orders.
Refusal to comply with the withdrawal of this content is punishable by one year’s imprisonment and a fine of 250,000 euros and can, in extreme cases, go up to 4% of the turnover of the digital platform. It is the Central Office for the fight against crime linked to information and communication technologies (OCLCTIC), a service of the judicial police, which has been appointed to issue the withdrawal injunctions.
Also, a qualified personality of Arcom (Audiovisual and digital communication regulatory authority) can recommend the cancellation of a withdrawal injunction if it considers it unfounded, or even urgently seize administrative justice. Thereby, “determination of the terrorist nature of the content in question is not left to the sole discretion of the administrative authority”notes the Council.
Finally, the possibility for web hosts and publishers, who challenge a withdrawal injunction, to obtain a decision from the administrative court within 72 hours and within a month in the event of an appeal, constitutes, in the eyes of the Elders, ” promptly “.
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