The proposed bill from Laetitia Avia claims its ambition to make the “Conseil supérieur de l’audiovisuel” (CSA, French Superior Council of the Audiovisual) platforms’ supervisor in the fight against online hate speech. Actually, the law goes much further than its proclaimed goal. As feared for several years, it begins the transformation of the authority into a major regulator of the Internet, along the lines of the “Comité Supérieur de la Télématique” (French High Council for Telematics) that François Fillon has proposed since 1996. Entrenching the dangerous conflation of the Internet and television, the Avia bill contributes to the centralisation and the increasing extra-judicial nature of the Internet. It could risk transforming the CSA into a dark version of the ORTF (the French national radio and TV censor body in place from 1964 to 1974).

The bill proposal led by Lætitia Avia is to be debated at the French National Assembly on July 3rd. Aside from the risks we already pointed out (see our legal analysis), it grants a large number of prerogatives to the CSA (French Television Regulatory Authority) :

Suggesting “recommendations, good practice advice and guidelines in order to ensure the compliance” with certain obligations mentioned in the law, namely those concerning the withdrawal of so-called hateful contents as defined in Article 1 (terrorism-related content, offence to human dignity, incitement to hatred, discrimination etc);

in order to ensure the compliance” with certain obligations mentioned in the law, namely those concerning the withdrawal of so-called hateful contents as defined in Article 1 (terrorism-related content, offence to human dignity, incitement to hatred, discrimination etc); Giving notice to and penalising any website failing to withdraw those contents within 24 hours after having been notified of the presence of them, with a fine of up to 4% of the website’s worldwide revenue, just as with the GDPR. To that extent, it will be up to the Authority to evaluate “how insufficient or excessive the operator’s response was related to the contents which have been brought to his/her knowledge”;

any website failing to withdraw those contents within 24 hours after having been notified of the presence of them, with a fine of up to 4% of the website’s worldwide revenue, just as with the GDPR. To that extent, it will be up to the Authority to evaluate “how insufficient or excessive the operator’s response was related to the contents which have been brought to his/her knowledge”; Finally, it takes over the CNIL’s (French National Commission on Informatics and Liberty) prerogative to control requests from OCLTCI (French police jurisdiction dealing with cybercriminality (and not from a judge) aimed at getting the ISP to block sites which are considered as displaying child pornographic or terrorism-related content.

These powers must be placed alongside those also acquired by the CSA in the recent law on fake news, (also known as the law “on the fight against information manipulation”). As a result, The CSA had already gained quite similar powers, such as the power to recommend changes in order to “improve” the fight against false information.

An old bad idea

Before considering the dangers that could result from such a delegation of authority, let’s take a quick look at the historical background between the CSA and the Internet. Because this is not the first time that the authority has wanted to take this type of power for itself.

In 1996, François Fillon, then Minister Delegate for the Post Office, Telecommunications and Space, tabled an

amendment as part of the debates on the “draft law on telecommunications regulation”. It proposes the creation of a “High Committee on Telematics” (CST), placed under the authority of the CSA, responsible for drawing up recommendations “to ensure that audiovisual communication services comply with the ethical rules adapted to the nature of the services offered”. As Owni.fr recounts, the main aim was to force Internet service providers, in exchange for a criminal liability for the content posted, to comply with the recommendations of this Council. According to Lionel Thoumhyre, the latter would thus become “the governing body of the French Internet, governor of virtual space”. The article of the law was fortunately subsequently invalidated by the Constitutional Council.

Since then the government never let down its efforts, helped in this by many politicians (1). Quoting Dominique Baudis (head of the CSA from 2001 to 2007) saying in 2001: “I believe that anything concerning audiovisual media services, directed toward a mass audience, and not covered by private correspondence or e-commerce should come under our competence. The fact that they are accessed though the internet changes nothing”. In 2004 also, the government attempted to use the LCEN law (“Loi pour la Confiance dans l’Economie Numerique”, the French Trust in Digital Economy Bill) to promote the CSA as a great regulator for the internet (this was rejected by the parliament after numerous criticisms). These attempts will come back for each debate, especially for laws about audiovisual media.

More recently even, in november 2017, Emmanuel Macron takes violence against women as a way to legitimise the extension of CSA attibutions. And in november 2018, the CSA itself calls for audiovisual regulation to include “video sharing platforms, social networks and real-time broadcasting plaforms”, with the added precision that “regulation must guarantee that these new players put into place appropriate safeguards concerning the protection of underage children, the fight against broadcasting content promoting hate and violence […]”.

Why the CSA is bad for the Internet

Reading the Avia bill and the powers delegated to it, one can only make this depressing observation that the CSA is in the process of winning, by wear and tear. By giving it the power to assess whether the operator has correctly removed content considered “hateful”, by giving it the power to punish, by allowing it to issue recommendations on online hatred (as it already does on “false information”), the proposed law comes dangerously close to the idea of the 1996 “Comité Supérieur de la Télématique” (High Telematics Committee) and thus contributes to the growing confusion that exists between the Internet and television.

This fuzzy thinking is an insult to what the Internet originally represented: a means of escaping the linear and one-sided information of television broadcasting by the creation of mutiple threads of expressing information. LQDN’s analysis on this theme from several years ago remains valid, and gives the rather painful impression of turning in circles: “The CSA regulates the broadcasting of content by commercial entities using centralised methods. Trying to impose the same type of rules on the multitude of commercial and non-commercial entities that constitute the Internet, which is a decentralised network in which everyone can consult content, and equally well publish content, is appalling. Internet is also about the distribution of videos, but above all it’s an implementation of our fundamental liberties, of making knowledge and culture accessible to all, of democratic participation, and so on.”

Beyond this nonsense, a desire to turn the Internet into television is a desire to centralise it. It is a way for the government to regain control over this unmediated means of expression by creating laws for and with the major platforms, seeing the Internet only through the distorted prism of these Internet giants, with the threat that one day these laws will be applied to everyone. Because it’s always easier to deal with only a small number of big players (and quicker than working with all the others).

It also puts into the hands of the administration powers that previously were the domain of the judiciary. It would be up to the CSA, rather than a judge, to decide which content is hate speech and should be taken down within 24 hours. And so, as is already the case for television, the administration would say what can and cannot be said or broadcast on the Internet. It is difficult not to link this with the recent statement by the Secretary of State for Digital Media which threatened to give the CSA the power “to decide what is or is not ‘fake news’?”.

We must then wonder if, through this law, the government is not exploiting the debate about online hate speech, its victims, and Laetitia Avia herself, to regain control on the Internet.

By delegating such powers to the CSA, with the objective of making it the great Internet policeman, the hate-speech law is another step towards ORTF2.0.

(1) To find a summary and a more detailed version, see Félix Tréguer’s 2015 article/paper on the subject : “The High Audiovisual Council and the regulation/control of the Internet : an ontological error.”