French law on content moderation risks ‘fragmenting’ EU digital market, says Commission

The French authorities explained in an explanatory memorandum that they “consider that it is urgent to take action to make these actors accountable for the place they now occupy in the public arena and given the systemic risks that their operating models may entail.” [Alfonso de Tomas/Shutterstock]

A French bill with several obligations for online platforms similar to a draft EU law poses a “risk to the single market in digital services and to Europe’s prosperity”, the European Commission has warned. EURACTIV France reports.

On a second reading of the bill on fighting separatism, the National Assembly adopted a text under which platforms will be required to “make public the resources they devote to combating illicit activities” and to “implement procedures and proportionate human and technological resources” to this end.

The French law obliges operators to designate a single point of contact for cooperation with judicial and administrative authorities, and the conservation of reported and removed content. An “easily accessible and user-friendly reporting system” for users and the establishment of a “trusted third party” status are also required.

“Increasing fragmentation poses a risk to the single market in digital services and to Europe’s prosperity, and makes it more difficult to ensure that all Europeans benefit from a comparable level of effective protection online,” the Commission told the French government on 14 June, in their observations published by NextINpact.

The French authorities explained in a memorandum that they “consider that it is urgent to take action to make these actors accountable for the place they now occupy in the public arena and given the systemic risks that their operating models may entail.”

According to the Commission, countries should “postpone implementation of envisaged measures where these concern a matter covered by a legislative proposal in order to avoid jeopardising the adoption of binding acts in the same field.”

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MP Frédérique Dumas (Freedom and Territories) noted that if each EU country were to pass its own legislation ahead of the adoption of the EU’s planned Digital Services Act, it will be difficult to “manage the competition between various European regulations”.

Laetitia Avia, one of the MPs responsible for the file, welcomed the Commission’s feedback, explaining that the areas of concern are just a few paragraphs of an eight-page long document. She also stressed that the EU executive could have blocked the text under the notification procedure.

“We are not hiding our strong ambition to regulate digital giants,” said Avia.

“The government has chosen to have France adopt a European text that has just been proposed by the European Commission and that must still be the subject of several months (if not years) of discussions, and therefore of modifications,” the Quadrature du Net has said.

The Commission told EURACTIV that it “urge[s] Member States to prioritise a speedy conclusion of the ongoing negotiations on the Digital Services Act, with a view to agreeing impactful, uniform, EU-wide rules”.

“The various national initiatives are testament to the societal and political pressure to have such new rules in force as soon as possible,” a Commission spokesperson added.

However, the text lists several safeguards in case there is duplication with EU legislation, and its provisions will be superseded when the Digital Services Act and an EU law on terrorist content come into force. The Commission welcomed the deadlines as a “positive element” of the bill.

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The case of Wikipedia

The bill is “incorrectly summarised as a law on social media,” the Wikimedia France association said in a publication, pointing to its “much broader scope”.

As the French bill targets third parties that are not necessarily established on French territory but whose activity within it “exceeds a threshold number of connections determined by decree,” Wikimedia fears it will not be exempted.

“All these regulations add constraints on the host,” Wikimedia France president Pierre-Yves Beaudouin told EURACTIV. “We’re afraid that it’s the volunteers who will be targeted,” Beaudouin added, pointing to Wikipedia’s community moderation-based system which relies on volunteers.

Since single articles hosted on Wikipedia get very few page views and cannot be shared on social media directly, Beaudouin said Wikipedia should be excluded from the bill’s scope.

“We cannot take the risk of creating legal frameworks that may allow other companies to deviate,” said the bill’s co-rapporteur, Avia, noting that large platforms could circumvent the conditions set out by the new bill.

According to Avia, the number of readers is not the most relevant factor for content moderation. “The young LGBT person who lives alone in a village in Creuse, who has 30 followers and gets hateful messages has the right to have that content moderated,” she added.

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[Edited by Luca Bertuzzi and Benjamin Fox]

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