The Balancing Act of Content Moderation in Europe: Lessons from the French “Avia Law” for the Digital Services Act

By François-Xavier Dussart, Verizon Media*

In order to address online harms and to avoid the emergence of an increasingly fragmented legal landscape in the European internal market, the European Commission has committed to reviewing the horizontal rules that define the responsibilities and obligations of digital services in Europe. This work is known as the Digital Services Act (DSA) and the related debates will likely last for the next few years.

While there is unquestionable support for the development of content moderation responses to identifiable online harms, it is crucial that the European Commission’s efforts are based on evidence and consistent with international human rights law.

The principles of necessity and proportionality will be essential for striking the appropriate balance. To avoid any chilling effects on the fundamental rights of EU citizens, the European Commission must ensure that any legislative action is, first, proportionate to the interest being protected and second, the most appropriate and least intrusive instrument to achieve the desired protective function.

Such balance is extremely difficult to achieve, as demonstrated by the recent French law to combat hateful content on the Internet. The law sought to require companies to remove certain forms of “manifestly illegal” content within 24 hours, and within a tight one-hour timeline for content identified as unlawful terrorist propaganda or child sexual abuse material by French authorities. In June, this law, known as “Avia’s Law,” was declared partially unconstitutional by the French Constitutional Council, on the grounds that these and other requirements were not necessary and proportionate and therefore could have led platform operators to censor content beyond reasonable limits.

Beyond the strict obligations, the French law also took an overly broad approach, specifically in terms of the variety of services in scope. Indeed, the broad definition of services left little room to ensure necessity and proportionality. During the debate, the French Senate suggested that search engines be excluded from the scope of the law, considering their limited role in the spread of hateful content and the fact that their technical characteristics make it almost impossible to de-index specific hateful content without making an entire webpage inaccessible. This approach was rejected by the French National Assembly, but it was a positive attempt to bring greater proportionality to the legislation.

Overall, at the early stage of the DSA discussions, the recent experience of the French hate speech bill reinforced real concerns about overly broad policies, which would encompass a wider range of intermediary activities than is supported by evidence. Ultimately, the Digital Services Act should provide a coherent and appropriately-narrow legal framework for content moderation in the European Union, and embrace the diverse and complex online ecosystem through an appropriate scope with clear definitions and safeguards. This careful balance will require great care to ensure the Commission preserves and protects the foundational rights we cherish as citizens of Europe.

* Verizon Media is a media and tech company that represents the best of the internet, creating high quality news and other original content and partnering with trustworthy news providers. With brands like Yahoo, HuffPost, TechCrunch, RYOT, MAKERS, Aol, as well as Yahoo Mail and Yahoo Search, Verizon Media is dedicated to helping people stay connected, informed and entertained. In 2008, Yahoo was one of the founding members of the GNI, and Verizon Media remains a GNI member today. Our approach to the debate on the EU Digital Services Act is shaped by the diverse nature of our services and our strong engagement on human rights. Our efforts to respect the rights of our users are strengthened by our Business & Human Rights Program, an in-house team within the legal department focused on leading our efforts to make responsible decisions regarding the ways in which our products, services and operations impact human rights.