Ahead of time, online platforms may have to anticipate the Digital Service Act in France

What is it all about?

On 21 January 2021, the French National Assembly adopted a draft amendment to the draft bill “Consolidating the principles of the Republic”.

This amendment would have the consequence of modifying the French Law for Trust in the Digital Economy of 21 June 2004, (the so-called “LCEN”) which implemented the E-Commerce Directive (2000/31/EC) and the hosting defence regime.

As a reminder, an attempt to regulate online harms in France had failed in June 2020: the French law to fight online hate speech (the so-called “Avia Law”) was stripped of most of its provisions after hav-ing been declared unconstitutional (see our previous article here).

Which platforms are caught?

If adopted, the new obligations will apply to all platforms, whether established in France or abroad, (i) which list, rank or share content uploaded by third parties (such as social media platforms and search engines) and (ii) whose activity in France exceeds a threshold of user connections (which has not yet been set).

What to expect?

Under the Proposed Law, platform operators would be under more onerous obligations in relation to online harmful content (including apologies of crimes or terrorism, incitement to racial or religious ha-tred), as follows:

• Cooperation with national authorities: Platform providers may have to implement propor-tionate technological and human mechanisms to cooperate with French authorities in the fight against the dissemination of harmful content;
• Implementation of reporting tools and notice action: Platform providers may have to pro-vide users with an easily accessible and user-friendly tool to report harmful content, which must allow the notifying party to fill in certain information. Each piece of reported content will have to be processed in an appropriate way and quickly, and the notifying user will have to be informed of the notice outcome. If, as a result, the provider makes the reported content inaccessible or removes it, the latter will have to notify the user who shared the content about the decision, while specifying some information such as the decision grounds and the availa-ble remedies.
• Complaint and redress mechanism: Platform providers will need to make available suitable mechanisms for complaints, redress out of court dispute settlements, for the purposes of the user who reported the content and the user who shared it.
• Point of contact: Platform providers will be required to appoint a single point of contact in or-der to streamline the communications with the CSA (French media broadcasting authority).
• Transparency reporting: Beyond the provision of precise information in the terms of use of the provider services on the harmful content moderation process, the provider will have to publish a report detailing the mechanisms it has implemented to fight against harmful content.
• Additional requirements for very large online platforms, exceeding a threshold of user connexions. In particular, these platforms will have to implement on an annual basis external risk-auditing mechanisms in relation to harmful content and the effective protection of user’s fundamental rights (such as the freedom of speech).

Scrutiny and sanctions

This new platform providers’ accountability mechanism will be monitored by the CSA, which is to be granted greater enforcement powers.

• Upon request, providers will have to grant the CSA access to various information regarding their mechanisms to tackle online harms in order for the CSA to assess their efficiency.
• The CSA may order providers who are in breach with the above requirements to comply with them, or else face penalties (see below).
• The CSA will publish an annual report on how the requirements are implemented by the pro-viders, which may result in reputational damages.

In line with the current draft DSA sanctions, the CSA will be able to order the following penalties:

• For non-compliance with a CSA injunction: a fine of up to 6% of the global turnover achieved in the past year by the platform or up to Euros 20 Million (whichever is greater). The amount of the fine will be assessed taking into account the seriousness of the breach and, where ap-propriate, its reiterated nature;
• For non-disclosure of information requested by the CSA, or the provision of false or mislead-ing information: a fine up to 1% of the global turnover achieved in the past year.

This sanctions mechanism may evolve since the Proposed Law still has to be reviewed and discussed between both chambers of French parliament before a final text is enacted. However, it is reasonable to think that the final text will be relatively close given the current momentum in support of the Pro-posed Law, and that this new regime may become effective in the coming months.

Platform providers will already be preparing for the implantation of the DSA; those preparations may need to be accelerated in light of the impending implementation of the Proposed Law.