The Avia Act, or the Triumph of the Self-Righteous Robots
Bernanos was a prophet when he foretold the reign of robots, «a universal conspiracy against every form of inner life» («France Against the Robots,» 1947).The Avia Law, passed yesterday, May 13, marks the triumph of algorithms—in other words, bots—over freedom of expression. A bitter triumph, to be sure, given that this law—which has had a chaotic journey and was ultimately rushed through amid a public health emergency—has been denounced as a threat to civil liberties, particularly by legal experts and journalists of all stripes, ever since it was introduced for its first reading in the National Assembly by LREM lawmaker Laetitia Avia last July (see. LSDJ No. 694).
They say the road to Hell is paved with good intentions. The Avia Act seems to have come straight down from Heaven, clothed in innocent integrity and white linen, to bestow upon Earth this angelic intention: to combat hatred. More specifically, «against hateful content on the Internet » (insults, threats, harassment, etc.) that social media platforms carry around the clock, generally with complete impunity, as their platforms are not subject to the laws governing traditional media (radio, television, newspapers). But, having given up on regulating the flood of content carried by the web, the parliamentary majority opted for a quick-fix solution by tasking American hosting providers—the so-called GAFAM (Google, Apple, Facebook, Amazon, Microsoft)—with cleaning up the mess themselves: it is up to them to practice preventive censorship by removing any suspicious content to avoid hefty fines. In practical terms, this means algorithms—in other words, bots configured by private operators across the Atlantic—will lay down the law in the style of the Wild West. These bots will take the place of our judges. Any suspicious word on a «sensitive» topic (Islam, immigration, minorities, sexual orientation, abortion…) flagged by internet users and vigilant lobby groups via an interactive button designed for this purpose will result in the post not being published or being promptly removed without further ado. The bots don’t cut anyone any slack…
The configuration of these censorship bots can only be the result of an agreement—not to say collusion—between political leaders, major internet companies, and certain lobby groups, aimed at silencing any «incorrect» opinions. The concept of «hate» is so vague, so lacking in legal precision, that it will inevitably curtail freedom of expression. How can we criminalize hate? How, for that matter, do we even measure it? How do we distinguish it from other emotions that aren’t supposed to be subject to censorship—such as aversion, contempt, jealousy—and that irony expresses more effectively than insults? When it’s already so difficult to convince a judge that you were targeting an idea and not a person or a group, try explaining to a computer that you’re waging a political or philosophical battle—not a vendetta!
Let's take comfort in the fact that the Avia Act doesn't seem to have much of a future. After its adoption at first reading, the bill had already been criticized in November by the European Commission, rejected in December by the Senate, and had drawn rare unanimous opposition from the media, journalists, legal experts, and organizations (Quadrature du Net, the National Digital Council, the National Consultative Commission on Human Rights, the Human Rights League). «By circumventing the prerogatives of the judicial branch, [the bill] undermines the safeguards that currently allow us to preserve the balance of our fundamental rights and freedoms,» denounced a dozen NGOs in a joint appeal. «This law undermines freedom of expression and is legally flawed. We believe it is incompatible with respect for our civil liberties,» tweeted Senator Bruno Retailleau, announcing that the LR group in the Senate would refer the matter to the Constitutional Council. A recent precedent should have prompted the presidential majority to exercise caution: on May 5, an emergency appeal filed by the National Union of Journalists (SNJ) with the Council of State forced the government to withdraw the «Désinfox coronavirus» platform it had just launched to combat real or supposed «fake news» about the epidemic. There is therefore something suicidal about the majority’s determination to pass the Avia Law at any cost. Enforcing it will be another matter entirely!
Philippe Oswald
