The Mila case was taken as an example by MP Laetitia Avia, author of the bill against hate content on the Internet (known as cyber-hate). But this is not necessarily a very relevant case.
This is a controversy that broke out in the middle of January. Since then, the “Mila affair”, named after the teenager who unleashed the most virulent reactions on social networks to say all the evil she thinks of Islam, sometimes using very harsh words, as allowed by freedom of expression and the right to blasphemy, has still not subsided.
The controversy, which led to the young woman’s temporary suspension from school due to the unlikely threats she received on social networks following the release of her video on Instagram, has since taken on national proportions, reaching the political class, including the government. The case has even become a topic through the future cyber-hate law, still under discussion in parliament.
- Read: Too Short a Time, Judge Absent, Unclear Definition: Internet Hate Law Alarmed
On 4 February, Laetitia Avia, a member of parliament for La République en marche and author of the bill – officially entitled “Draft law against hate content on the Internet” – appeared on BFM TV to illustrate how the new law could have helped her, who is now the victim of a wave of harassment and hatred.
The parliamentarian considers that the text, which strongly opposes the National Assembly and the Senate, would have made it possible to delete the messages targeting Mila on social networks, but also served to identify the persons who wrote them, in order to bring them to justice and, if necessary, obtain their conviction. But another reading suggests on the contrary that the text could be either useless or counterproductive.
The case originated in a video published by Mila on Instagram. // Source: Pixabay
Network specialist and former head of regulatory affairs at Free, lawyer Alexandre Archambault intervened on Twitter to point out that the so-called Avia law would not necessarily have been helpful at the very beginning of the online harassment suffered by the teenager. On the other hand, it also tends to reinvent the wheel, since some of the legal provisions it contains already exist.
This is the case for the identification of the authors of hate content, thanks to the 2011 decree on the preservation and communication of data that makes it possible to identify any person who has contributed to the creation of online content. And the data that are kept are numerous: identifiers, pseudonyms, first and last names, postal addresses, telephone numbers, e-mails, times and dates.
As for the cyber-hate law, it is only interested in public content, as we read in the first article: it is aimed at “online platform operators […] who offer a communication service to the public online based on the linking of several parties for the purpose of sharing public content and whose activity [in France]” exceeds a certain threshold. In short, the big social networks.
According to Alexandre Archambault, solicited by Numerama, “Mila’s harassment began in the form of private messages“. These do not fall under the cyber-hate law, which is not voted on anyway and which aims at “sharing public content“, but private correspondence. The same legal tools are therefore not to be used, even if the lawyer agrees: the case then spilled over into the public sphere.
In this second sequence, cyber hate law would then become relevant. But in the eyes of Alexandre Archambault, it is not certain that the text would be beneficial to the young woman, since some of its provisions could be misused to organize a kind of “raid” consisting of massively reporting Mila’s publications on the pretext that she was making a hateful statement about Islam.
“It is questionable whether the absence of this text did not, on the contrary, work in Mila’s favour,” observes the lawyer. While the first sequence of the harassment, via private messages, is irrelevant, the second sequence, which appeared when Mila reacted on video on Instagram to the verbal assault she was experiencing via the social network’s internal messaging system, came after messages of outrage from popular accounts.
It is this media coverage “that had the effect of launching the second wave of harassment, this time of public content,” he comments. However, under the cyber-hate law, “it cannot be ruled out that this wave of harassment will not take place in the form of indignant tweets, but via raids to notify hateful content to silence it. And what was supposed to protect Mila then turned against her.
“It is not to be excluded that this wave of harassment is taking place through notification raids to silence it.”
It turns out that the risk of increased censorship because of this text has been raised for nearly a year now by its contemptuers, such as the National Digital Council, which wrote in March 2019 that “doubt would benefit censorship” since this text forces social networks to react in quarter-turn to combat hateful content, on pain of seeing their judicial responsibility engaged.
“Assessing whether a publication is hateful or abusive [can] sometimes, depending on the context, be difficult,” the Council added. This is why this role “traditionally belongs to the judge who offers all the guarantees of competence and impartiality to rule on the illicit nature of a content“, without any economic stakes behind it or risk of prosecution.
That is also where the senators and members of Parliament are fighting. The former considered at first reading that the drafting of the law is “unbalanced and will not fail to cause many perverse effects“, adding to their grievances the risk of over-censorship (content is removed when it is lawful, as a precaution and in doubt), the initial exclusion of the judicial judge and the green light given to foreign platforms to conduct police missions in the area of freedom of expression in France.
- Read: Anti-hate law on the Internet: the UN worries, France responds