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Freedom of expression: Web giants must be subject to the law

Jean-Philippe Hecketsweiler & Laurent Cordonier

Twitter's decision to permanently suspend Donald Trump's account in the aftermath of the storming of the US Capitol has been denounced in France by numerous commentators and political figures of all stripes. Going well beyond Trump’s ban, this avalanche of reactions reflects the importance of issues concerning the role played by digital platforms in the control of public expression.

Given their oligopolistic situation, major social networks can no longer be considered as mere private clubs, free to determine via their general conditions what can or cannot be said on their platforms. While social networks must of course engage in moderation, we hold that, when doing so within democratic countries, their framework should be no other than the laws set forth by the national government of the country in question. In France, this framework corresponds to the law of 1881, which both guarantees and sets clear limits on freedom of expression, and which is supplemented by a number of legal articles of criminal law. In order to ensure that online public expression is not subject to the arbitrary decisions of digital platforms, their moderation should be neither more nor less restrictive than the law. 

In concrete terms, platforms should be required to open moderation centers in France and to provide their staff with training courses based on French law and its jurisprudence. The role of these moderators would be to identify and remove content that is manifestly illegal and to refer the most serious cases to a judge. Consideration could also be given to the establishment of an independent, national mediation center for moderation, fully funded by the platforms, which would bring together jurists and representatives of the platforms and the government. Moderators could resort to this center in cases of doubt regarding the moderation of certain content. The center’s final decision would be prescriptive, but could still be appealed, as judicial judges remain the ultimate protectors and arbiters of freedom of expression. Lastly, platforms should be required to have a legal representative in France, whom the government, the justice system or private individuals could call into question if they consider that a platform is not properly fulfilling its moderating function.

It should be noted that the majority of online comments that could be subject to prosecution are no more than the modern equivalent of “bar-room talk” – their lack of audience renders them harmless. Who would think of regulating them in the real world? These comments only become harmful because of their dissemination, their audience and the publicity they receive. It would therefore be advisable to prioritize legal action against perpetrators of particularly damaging criminal statements (for example, cases of school harassment) or against those who benefit from a large online audience, which can be quantified by their number of views or followers.

The act of both protecting and regulating freedom of expression on the Internet is as necessary as it is delicate. It is up to the whole of civil society to contribute to these reflections. The Descartes Foundation, a citizen-based, independent and non-partisan initiative, brings together various experts and actors in the information market in order to carry out in-depth reflections and forge concrete proposals on this pivotal issue.

Given their oligopolistic situation, major social networks can no longer be considered as mere private clubs, free to determine via their general conditions what can or cannot be said on their platforms. While social networks must of course engage in moderation, we hold that, when doing so within democratic countries, their framework should be no other than the laws set forth by the national government of the country in question. In France, this framework corresponds to the law of 1881, which both guarantees and sets clear limits on freedom of expression, and which is supplemented by a number of legal articles of criminal law. In order to ensure that online public expression is not subject to the arbitrary decisions of digital platforms, their moderation should be neither more nor less restrictive than the law. 

In concrete terms, platforms should be required to open moderation centers in France and to provide their staff with training courses based on French law and its jurisprudence. The role of these moderators would be to identify and remove content that is manifestly illegal and to refer the most serious cases to a judge. Consideration could also be given to the establishment of an independent, national mediation center for moderation, fully funded by the platforms, which would bring together jurists and representatives of the platforms and the government. Moderators could resort to this center in cases of doubt regarding the moderation of certain content. The center’s final decision would be prescriptive, but could still be appealed, as judicial judges remain the ultimate protectors and arbiters of freedom of expression. Lastly, platforms should be required to have a legal representative in France, whom the government, the justice system or private individuals could call into question if they consider that a platform is not properly fulfilling its moderating function.

It should be noted that the majority of online comments that could be subject to prosecution are no more than the modern equivalent of “bar-room talk” – their lack of audience renders them harmless. Who would think of regulating them in the real world? These comments only become harmful because of their dissemination, their audience and the publicity they receive. It would therefore be advisable to prioritize legal action against perpetrators of particularly damaging criminal statements (for example, cases of school harassment) or against those who benefit from a large online audience, which can be quantified by their number of views or followers.

The act of both protecting and regulating freedom of expression on the Internet is as necessary as it is delicate. It is up to the whole of civil society to contribute to these reflections. The Descartes Foundation, a citizen-based, independent and non-partisan initiative, brings together various experts and actors in the information market in order to carry out in-depth reflections and forge concrete proposals on this pivotal issue.

Opinion piece published in Les Echos on January 21st, 2020.

Topic :  Social Media, Regulation  
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Format :    
Language  :  French 
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