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Sunday, February 8, 2015

Unpacking France's Chilling Proposal to Hold Companies Accountable for Speech

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Jillian York

France’s misguided efforts to grapple with hate speech—which is already prohibited by French law—have been making headlines for years. In 2012, after an horrific attack on a Jewish school, then-president Nicolas Sarkozy proposed criminal penalties for anyone visiting websites that contain hate speech. An anti-terror law passed in December imposes greater penalties on those that “glorify terrorism” online (as opposed to offline), and allows websites engaging in the promotion of terrorism to be blocked with little oversight. And following the attack on Charlie Hebdo last month, Prime Minister Manuel Valls stated that “it will be necessary to take further measures” to address the threat of terrorism.

Despite such a history, the latest proposal to emerge from the country is shocking. At the World Economic Forum last week, President Francois Hollande called on corporations to “fight terror,”stating

The big operators, and we know who they are, can no longer close their eyes if they are considered accomplices of what they host. We must act at the European and international level to define a legal framework so that Internet platforms which manage social media be considered responsible, and that sanctions can be taken.
In effect, Hollande’s proposal seeks to hold social media companies accountable for the speech that they host. This is antithetical to US law, where online service providers are explicitly exempted from being treated as publishers, with few exceptions, thanks to Section 230 of the Communications Decency Act.

In other countries, such as Thailand, a lack of protections for intermediaries led to the 2010 arrest of the editor of a popular publication. Her crime? A failure to quickly moderate comments that were deemed to defame the monarchy, an act that in Thailand comes with harsh penalties.

Developing global norms on intermediary liability point away from the Thai model that the French President lauded, in favor of a model closer to US law. An international study on the topic launched last month by UNESCO concluded that “Limiting the liability of intermediaries for content published or transmitted by third parties is essential to the flourishing of internet services that facilitate expression.”

While it’s likely that many of the companies in question would attempt to voluntarily comply with requests to remove content that glorifies terrorism, Hollande’s proposal would subject them to sanctions if they fail to comply with the proposed regulations. This places an extraordinary burden on these companies, whose users number in the millions, or even billions. It also stifles innovation locally: Entrepreneurs in France are unlikely to create new platforms for speech if there’s a risk of penalty in doing so.

We understand that European attitudes toward hate speech differ from those in the United States, but we strongly believe that any attempt to ban speech leads down a slippery slope. Holding corporations accountable for the speech they host is just one step down that slope.

Please visit the Electronic Frontier Foundation, where this first appeared,  for the latest in digital privacy and civil liberties. 

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