JURIST Guest Columnist Félix Tréguer, Policy and Legal Analyst at La Quadrature du Net says that waging a “judicial guerilla war” in France on “hateful” Internet content unduly stifles free speech…

The ghost of Yahoo v. LICRA has come back to haunt us. In 2000, after a criminal lawsuit was filed by the International League Against Racism and Anti-Semitism (LICRA), a French judge ruled that auctions of Nazi-related paraphernalia hosted by what was then the hippest online service — US-based Yahoo — were illegal in France. The judge consequently ordered Yahoo to “take all necessary measures to dissuade and make impossible” for France-based Internet users to access these auctions.

At the time, many people were dubious about the ability of French courts to enforce such a ruling on a US-based company. It took many years until the case was resolved in both France and the US but, by the time it finally was in 2006, it had become clear that French territorial law (and, consequently, other territorial law) did apply to online services (even if such services were based in the “free speech haven” that is the US). After deploying geo-identification technologies to locate French Internet users and block them from accessing the illegal web pages, Yahoo eventually decided to withdraw all Nazi paraphernalia from its auction site. The company declared that it would “no longer allow items that are associated with groups which promote or glorify hatred and violence … to be listed on any of Yahoo’s commerce properties.”

Fast-forward to the fall of 2012. The famous micro-blogging platform Twitter has ended up in the eye of a legal storm. In the past months, odious jokes using anti-Semitic and other hateful hashtags (such as #AgoodJew, #AdeadJew and #Ifmysonisgay) have attracted widespread media attention, as several organizations (including LICRA) that fight against anti-Semitism, racism and homophobia brought charges against Twitter before a Parisian court. According to the plaintiff organizations, the tweets are illegal under the 1881 Law on the Freedom of the Press (“Press law”), which provides that those posting content that incites hatred or discrimination — or those that utilize racist insults — can be punished by up to a year in prison. There is also plenty of political pressure for Twitter to do more to fight against hate speech. In December 2012, Najat Vallaud-Belkacem, the Minister of Women’s Rights and spokesperson for the French government, went on to publish an editorial [in French] in France’s most influential newspaper, Le Monde. In the piece, she made it clear that the kind of hate speech that has blossomed on the popular social network could no longer be tolerated: “This means that the company Twitter must find solutions so that the messages sent from our territory, in our language and intended for our fellow citizens, do not manifestly violate the principles we hold dear.”

Just like Yahoo did a decade ago, Twitter tried to argue in court that it was a US-based service not bound by French law. After all, the company argued, Twitter has only a tiny office used for marketing purposes in France, hardly any staff in France and its servers &#151 as is the rest of its technical platform &#151 are located in the US.

On January 24, 2013, after the failure of a mediation process, a Parisian judge rejected these claims and issued an injunction requiring Twitter to provide the identifying data it stores on the authors responsible for anti-Semitic tweets so that the plaintiff organizations can prosecute them. Based on the company’s “Twitter Rules,” which require “international users to comply with local laws regarding online conduct and acceptable content,” the ruling also orders Twitter to establish a reporting system allowing users to report anti-Semitic and racist tweets so that they can be taken down by Twitter’s staff.

For the many citizens weary of increased governmental control over online communications, this injunction is bad news. It means that Twitter could be forced to develop a comprehensive a posteriori censorship process to delete allegedly racist tweets flagged by its users. In the process, the crucial principle that only a judge should decide the illegality of content would be further undermined.

Of course, such systems are already widespread. For the past several years, many online platforms like Facebook and YouTube have implemented similar extra-judicial, privatized censorship schemes based on their respective “terms of service” to take down allegedly copyright-infringing, obscene or otherwise offensive content. However, as various uncovered cases of abuse have made clear, “over-blocking” of perfectly legal content is commonplace, with no possibility of judicial redress.

Rather than encouraging these dangerous censorship systems, as occurred in the Twitter case, public authorities and judges in particular must seek to alleviate the abuse inherent to privatized law enforcement. They should do so by designing regulatory frameworks and developing judicial precedents that bring the most comprehensive protections to online speech, even within these “quasi-public spheres” that Internet platforms have come to represent. By failing to do so, democratic regimes risk further undermining their moral high ground in the international discussions on “Internet freedoms.”

However, this case highlights a more fundamental issue regarding the doctrine of freedom of expression in Europe. Since the inception of the Internet, France and other EU democracies have acted as if the legal framework developed over the past century to regulate speech in a traditional media environment was perfectly transposable onto the online world, where the vast majority of citizens can express their views. At its core, the Internet is the First Amendment to the US Constitution made flesh on a global scale. By trying to fight against this techno-political reality so as to assert territorial law, national legislations and courts are fostering the Balkanization of the Internet and are undermining its key architectural features, in particular its decentralized, end-to-end structure. Moreover, to the extent that such regulation of “mass self-communication” rests on extra-judicial and automatic enforcement, online speech restrictions are bound to disrespect the rule of law.

As a global community of Internet users, we are faced with the choice of either accepting that the Internet commons be progressively dismantled at the expense of the fundamental rights to freedom of expression or recognizing the need for reform. As US President Barack Obama said to the UN General Assembly after the wave of violence that followed the publication of an anti-Islam film online, “at a time when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete.” Though this is something of an overstatement, we must at least recognize the great costs that exerting such control inherently carries and must ask ourselves whether the cost of enforcing the current hate speech criminal provisions and other speech-restricting laws is not vastly disproportional with regards to its actual effect.

As both a French and global citizen, I wish racism and other forms of intolerance could vanish from public discourse. With that being said, I strongly doubt that the “judicial guerilla war” currently waged by anti-discrimination organizations against online hate speech will be effective in curtailing actual discrimination in our pluralistic societies. I would rather see these organizations focus more on the education of French citizens regarding inter-cultural understanding, on being more vocal in criticizing rampant Islamophobia and hostility in political discourse and on innovative ways in which online hate speech can be countered. In that regard, they should reflect on the point made by US Supreme Court Justice Louis Brandeis in the 1927 case Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Unfortunately, the government does not seem ready to reform its broken policies to promote greater freedom of speech. Just a few days after the ruling against Twitter, French Interior Minister Manuel Valls announced during a conference on cybercrime that, “taking into account the Internet’s firepower,” the government would soon propose that crimes pertaining to hateful speech be taken out of the Press law — where they enjoy special procedural safeguards — and instead be included in the French Penal Code in order to bolster the repression of such speech.

Félix Tréguer is a Volunteer Policy and Legal Analyst for La Quadrature du Net. This Paris-based advocacy group promotes the free circulation of information and knowledge on the Internet. Tréguer is also a PhD candidate in political science at the School for Advanced Studies in the Social Sciences, researching the consequences of the Internet for communications law and democracy at large.

Suggested citation: Félix Tréguer, Regulating Internet Freedoms in France: A Broken Policy of Enforced Silence , JURIST – Hotline, Feb. 6, 2012, http://jurist.org/hotline/2013/02/felix-treguer-twitter-france.php.