What does the law say?

What is Hateful Content?

Although freedom of expression is a precious fundamental freedom (Cons. const. 11 Oct. 1984, Press Companies, No. 84-181 DC), the legislature has come to punish abuses of the exercise of this freedom.

These abuses are common on the Internet and are found in what is called online hate. The Committee of Ministers of the Council of Europe has proposed a definition of this concept that covers “all forms of expression which spread, incite to, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance (…) ” (Committee of Ministers to member States on “hate speech“, Recommendation No. R(97) 20, 30 October 1997).

Thus, hateful content can include:

• Offenses targeted by the law of July 29, 1881 on freedom of the press, namely:

1. Incitement to hatred, violence, or discrimination.
2. Insult defined as any outrageous expression addressed to a person that does not require a specific fact.
3. Defamation defined as the allegation or imputation of a fact that damages the honor or consideration of a person.These three offenses must have a discriminatory character (based on race, religion or sex for example).
4. Denial of war crimes, crimes against humanity, as well as glorification.
5. False information known as “fake news” likely to disturb public peace.

• Infringement of image rights and privacy (art. 9 of the Civil Code).
• Moral harassment, cyberbullying (art. 222-33-2 to 222-33-2-3 of the Penal Code).
• The distribution of images seriously undermining human dignity (art. 224-24 of the Penal Code).
• Endangering the life of others by disseminating information relating to private, family or professional life (art. 223-1-1 of the Penal Code).

Content published on the Internet can be prosecuted by French justice if it meets one of the following conditions:

• It is accessible in France, in the French language;
• It is intended for the French public;
• It harms the interests of a person living in France.

This applies even if the author is not in France and even if the site where the content is located is not a French site.

Freedom of expression does not justify being able to disregard this legal framework. Everything published online engages its author even with the use of a pseudonym. Various measures have been put in place to act against hateful content.

The Fight Against Online Hate

The Central Office for Combating Crimes Against Humanity and Hate Crimes (OCLCH), an interministerial judicial police service, has enabled the creation of the Division for Combating Hate Crimes (DLCCH) in August 2020. The latter’s mission includes tracking hateful content on the Internet and taking the initiative to identify the authors.

The Observatory of Online Hate (established by art. 16 of Law No. 2020-766 of June 24, 2020 aimed at combating hateful content on the internet) is responsible for monitoring and studying hate speech on the internet, particularly on social networks in order to fight against “cyberhate”. It has been attached to the Regulatory Authority for Audiovisual and Digital Communication (Arcom) since January 2022.

Law No. 2020-766 of June 24, 2020 has also created a national center for combating online hate, housed within the Paris Judicial Court. Its jurisdiction covers the following offenses:

• Direct provocation not followed by effect to commit a crime or offense;
• Offenses of public incitement to discrimination, hatred or violence, public insult, and public defamation based on belonging or non-belonging, real or supposed, to an ethnicity, nation, alleged race or determined religion or based on sex, sexual orientation or gender identity or disability;
• Moral harassment when the messages are public and contain elements that allow for the retention of an aggravating circumstance under articles 132-76 and 132-77 of the Penal Code.

Thus, the electronic complaint for moral harassment and discriminatory sexual harassment committed on the internet throughout the territory must be filed before the judicial court of Paris.

The Central Office for Combating Information Technology and Communication-Related Crime (OCLCTIC) provides internet users with the PHAROS platform (Platform for Harmonization, Analysis, Cross-checking and Orientation of Reports), which allows online reporting of illegal internet content and behavior.

Platforms must also fight “more effectively” against hateful content. Decree 22-32 of January 14, 2022 defines 2 audience thresholds:

• Threshold No. 1: concerns platforms with at least 10 million monthly unique visitors in France. These platforms will then be obliged to cooperate with law enforcement services, to implement notification systems for hateful content, as well as processing of this content. They will also need to be transparent about their moderation processes.
• Threshold No. 2: concerns platforms that exceed 15 million monthly unique visitors. These platforms are, in addition, required to assess the risks of dissemination of hateful content and propose means to combat this dissemination.

Arcom is responsible for enforcing these obligations and has the power to issue formal notices, as well as sanctioning power, with penalties that can reach 20 million € or 6% of the platform’s global turnover.

These provisions will apply until the European Regulation known as the Digital Services Act (DSA) becomes applicable in Europe. It was voted by the European Parliament on July 5, 2022 and should be applicable in 2024.

Children who are victims of cyberbullying can benefit from rapid support with the 3018 application, launched in February 2022. This application allows for chat dialogue with professionals from the national number 3018 and stores evidence of harassment. The 3018 offers accelerated reporting procedures to have content removed within hours on social networks.

What to do if you are a victim of malicious publication on the Internet?

1. Collect evidence

• You can collect evidence by any means, particularly screenshots of the publication, taking care to show the date.
• Keep the URL link.
• Take screenshots of the comments following the statements.
• It is possible to have an official report made by a justice commissioner.
• In case of cyberbullying of a minor, install the 3018 application which will allow storing of evidence.

2. Report

• You can report inappropriate or abusive behavior to the person responsible for the website or social network in question on their dedicated page.
• You can make a report on PHAROS: report illegal internet content.
• For issues related to personal data protection, file a complaint with the CNIL: Online Complaints | CNIL.

3. Request removal of hateful content

• You can have content removed from the Internet by making a request to the content author, then to the site host. Many hosts implement specific reporting mechanisms provided for this purpose.
• In case of emergency and obvious harm, you can ask the judge for an interim relief to have content removed by the host.

4. Initiate legal proceedings

• You can file a simple complaint. The person targeted by the complaint must be the author of the hateful content.
• You can also file a complaint against the host of the site if they refuse to remove the illegal content after your report.
• You can directly file a complaint with civil party status.
• You can choose the procedure by way of direct summons if the author is identified. The summons must indicate exactly what content is targeted and what offense it falls under.

5. Inform the Defender of Rights.

6. You can contact Equitas, which can provide you with legal assistance.

APPLICABLE REFERENCES

Law No. 2004-575 of June 21, 2004 on confidence in the digital economy (LCEN law); Law of July 29, 1881 on freedom of the press; Law No. 82-652 of July 29, 1982 on audiovisual communication (article 93-3); Law No. 2020-766 of June 24, 2020 aimed at combating hateful content on the internet; Law No. 90-615 of July 13, 1990 aimed at suppressing any racist, antisemitic or xenophobic act.

Articles 223-1-1 and 224-24 of the Criminal Code; Articles 132-76 and 132-77 of the Criminal Code; Decree No. 2013-987 of November 5, 2013; Art. 9 of the Civil Code.

Decree No. 2021-1738 of December 21, 2021 modifying Decree No. 2013-987 of November 5, 2013 establishing a central office for the fight against crimes against humanity, genocide and war crimes; Decree 22-32 of January 14, 2022 implementing Article 42 of Law No. 2021-1109 of August 24, 2021 reinforcing respect for the principles of the Republic and relating to the setting of a connection threshold from which online platform operators contribute to the fight against the public dissemination of illegal content.