DIGITAL MODERATION: THE FIRST LEGAL TOOLS HAVE BEEN IMPLEMENTED.

It appears that digital technology consumes a great deal of energy.

Digital activity continues to grow. Over the past ten years, we have thus moved toward what is commonly referred to as « the digital age », with the development of the Internet, streaming (a technology that allows for the continuous, real-time transmission of audio and/or video streams), and, even more recently, artificial intelligence.

Cédric Villani's Report « Giving Meaning to Artificial Intelligence » (Parliamentary mission entrusted by Prime Minister Edouard Philippe to Cédric Villani, Member of Parliament, carried out from September 8, 2017, to March 8, 2018) [1], includes a Part 4, titled « Artificial Intelligence for a Greener Economy ».

The report notes:

« AI offers numerous opportunities for ecology. AI will enable us to understand the dynamics and evolution of ecosystems based on the reality of their biological complexity, optimize the management of our resources—particularly energy resources—preserve our environment, and promote biodiversity. The development of AI can give rise to new approaches to maintaining protected natural areas, both on land and at sea. From autonomous robots designed to remove invasive starfish to smart barriers that redirect wildlife to protect it, there are numerous possibilities for developing new, more adaptive, and more respectful ways of interacting with nature. ».

And it is true, for example, that Law No. 2016-1691 of December 9, 2016 (on transparency, the fight against corruption, and the modernization of economic life) entrusted the High Authority for Transparency in Public Life with the task of creating a national digital registry of interest representatives, known as Agora, designed to provide citizens with information on the relationships between interest representatives and public officials when public decisions are made. Interest representatives must therefore disclose, among other things, « the types of public decisions that were the subject of the lobbying activities undertaken », in order to curb lobbying efforts aimed at reducing environmental restrictions on them.

This is, without a doubt, a demonstration of the benefits that digital technology can bring to environmental law.

However, it appears that digital technology is also a major consumer of energy.

As the Villani Report points out, it is therefore urgent to take into account the environmental impacts of the growth in digital uses and services:

« At a time when global warming is a scientific certainty, it is no longer possible to pursue a technological and societal vision that is disconnected from the need to preserve our environment » [2].

In the first section, we will examine the environmental impacts of digital technology and the legal frameworks that apply to them (I); in the second section, we will assess these legal frameworks (II).

I. The Various Environmental Impacts of Digital Technology.

Digital pollution now exceeds that caused by air travel. 47% of greenhouse gas emissions (hereinafter referred to as GHG) are attributable to consumer devices, and 4% of global greenhouse gas emissions are currently linked to digital activity, which is roughly equivalent to the emissions produced by air travel.

As outlined in a report (Report No. 850, 09/2016) [3] According to ADEME’s report to the Senate, another problem is that digital pollution is increasing much faster than in other sectors where measures have been taken:

« The direct energy footprint of the digital sector is increasing by 9% per year. The digital sector’s share of final energy consumption (which itself is growing by 1.5% per year) is thus projected to increase by nearly 70% between 2013 and 2020 ».

The report explains that these trends are primarily due to the rise of smartphones and the explosion in data traffic, estimated at +25% per year on networks and +35% per year in the data centers, data that must also be stored.

The manufacturing of digital devices is also the most energy-intensive and the largest source of GHG emissions. 90% of the GHG emissions associated with a smartphone come from the manufacturing phase.

It is therefore essential to understand digital pollution. In order to examine the applicable legal framework under environmental law, we will distinguish between the physical aspects of digital technology—namely, electronic devices (I.1)—and its intangible aspects—namely, streaming and data (I.2).

I.1 The Environmental Impact of Electronic Equipment and the Applicable Legal Frameworks.

We will distinguish between the environmental impact resulting from the manufacture of devices (I.1.1) and that resulting from their end-of-life phase, namely their treatment as waste (I.1.2).

I.1.1 Equipment Manufacturing.

Electronic equipment contains plastic components, a large proportion of metal, and non-ferrous metals, including precious metals.

The ADEME report details the composition of a smartphone in its report to the Senate: It shows that the average weight of the materials needed to manufacture a smartphone is 70 kg, while a smartphone weighs an average of 120 grams…

In addition to the geostrategic issues raised by the extraction of these metals—whose deposits are located in China, Russia, South America, Africa, etc., and the problem of limited resources—as is the case, for example, with copper—these mining operations cause serious harm to the environment and the health of local residents.

The audiovisual documentary titled « The Hidden Side of Green Energy » by Jean-Louis Perez and Guillaume Pitron, broadcast on Arte, highlights the damage caused by metal mining.

The documentary cites, as an example, the graphite mines in China’s Heilongjiang province, where workers labor day and night without protection in an unbreathable environment; they are the “black-faced miners” of the 21st century, facing a high risk of silicosis (lungs turning to stone).

The concept of ’ eco-design », as outlined in the text below, could help combat this phenomenon.

The Act of February 10, 2020, on Waste Reduction and the Circular Economy (known as the AGEC Act) contains provisions designed to promote « eco-design » (in particular Article 62). This law stems from the 2004 Environmental Charter adopted by Constitutional Law No. 2005-205 of March 1, 2005 « Constitutional Law on the Environmental Charter ».

Eco-design is defined by the ISO 14006/2011 standard as the integration of environmental aspects from the very beginning of the design of a product or service, with the goal of reducing environmental impacts throughout its life cycle: from the extraction of raw materials, through production and distribution, to use and finally to the end of the product’s or service’s life.

Eco-design requires taking a holistic view of environmental indicators.

As such, AGEC asks producers to also manage the end of a product’s life cycle:

I.1.2 End-of-life equipment: waste.

The AGEC Act, like an OECD report dated July 18, 2017, encourages producers to

« take responsibility for the environmental impacts of their products throughout the product life cycle, from design through to the post-consumer phases. The idea was that, by applying this principle, the burden on municipalities and taxpayers associated with managing end-of-life products would be reduced, the amount of waste destined for final disposal would be decreased, and recycling rates would be increased. ».

Electronic equipment, which supports digital activities, generates significant amounts of waste known as WEEE (Waste Electrical and Electronic Equipment), which contains substances and components that are hazardous to the environment and human health, such as mercury and PCBs (polychlorinated biphenyls).

But this equipment is also made of materials with high recycling potential: ferrous and non-ferrous metals, plastics, glass, etc.

In the early 2000s, the European Union had to enact legislation governing their management and processing. This resulted in two directives, which were revised in 2011 and 2012:
 Directive 2002/95/EC of January 27, 2003, on hazardous substances in such equipment (also known as the RoHS Directive, « Restriction of Hazardous Substances in Electrical and Electronic Equipment ») ;
 Directive 2002/96/EC on waste electrical and electronic equipment.

In accordance with these Directives, France has established a specific waste management system based on the principle of extended producer responsibility (EPR). It is based on the polluter-pays principle (PPP), a concept described in the 2005 Environmental Charter, according to which « Every person must contribute to the remediation of environmental damage they cause, under the conditions established by law ». The organization of the WEEE sector is regulated by Article L541-10-2 of the Environmental Code.

The AGEC Act of February 20, 2020, expanded this program by adding Articles L541-9-1, concerning consumer information, and L541-9-2, concerning the repairability index, to the Environmental Code.

These articles will take effect on January 1, 2022.

Thus, one of the objectives of the AGEC Act is to inform consumers about the environmental characteristics of products. Priority is given to product repair.

She

« prohibits the distributor from establishing a monopoly on the repair of its own devices by preventing consumers (Consumer Code, Art. L441-3, para. 1) and repair professionals (Consumer Code, Art. L441-4) from from using the products and services of their competitors » [4].

The AGEC Act is therefore undoubtedly a step forward, even though we still have to wait for the publication of the numerous implementing decrees.

I.2 The Environmental Impact of the Intangible Nature of Digital Technology and the Applicable Legal Framework.

Digital pollution stems not only from the devices themselves—physical media—but also from the intangible aspects of the digital world, namely data and streaming.

The report « »Climate: The Unsustainable Use of Online Video" (2019) by The Shift Project [5]presents an alarming assessment of the impacts of online video.

Two factors are cause for concern. First, the role of digital technology in environmental pollution.

The Shift Project report states that «the digital sector currently accounts for 4% of global greenhouse gas emissions, which is more than civil aviation » [6].

On the other hand, the exponential growth of this sector: Energy consumption in the digital sector is increasing by 9% per year [7].

According to the Shift Project report

« This share could double by 2025 to reach 8% of the total—equal to the current share of emissions from cars. While climate constraints require a drastic reduction in global greenhouse gas emissions in the coming years, the digital sector is increasing its energy consumption by 9% per year ».

As noted in the Shift Project report,

« Video is a highly information-dense medium: 10 hours of high-definition film contains more data than all the English-language Wikipedia articles in text format combined! » [8].

This leads us to consider another aspect of the digital world that is also harmful to the environment: the datasphere.

In fact, the annual volume of digital data continues to grow worldwide [9].

And the development of artificial intelligence is likely to further exacerbate this phenomenon.

An article from the newspaper « Les Echos » dated November 24, 2020, titled « The Energy Challenge of Artificial Intelligence »highlights the energy-intensive nature of deep learning." He explains:

« Let’s take the example of GT-3, a language model unveiled this summer by the California-based research lab OpenAI. (…). Training it required the equivalent of 355 years of processing time on a single processor, at an estimated cost of $4.6 million. ».

The 2018 Villani Report proposed [10] a regulatory framework in this regard, and there is a Senate bill dated October 12, 2020, aimed at reducing the environmental impact of digital technology in France [11]§.

II. Assessment of Legal Systems.

We are seeing a growing awareness of the environmental impact of digital technology.

However, as it stands, the legal framework established to combat this phenomenon primarily concerns electronic devices and digital media. In this area, concrete measures have been taken, in particular the Agec Act.

As for the issues surrounding online videos, streaming, and—more broadly—the data sphere, which is growing exponentially, it seems to me that no real measures have been taken.

Various reports have raised this issue, but to date, no effective measures have been taken.

A Senate bill dated October 12, 2020, aimed at reducing the environmental impact of digital technology in France [12], provides for various measures, including:
 Planned obsolescence: Article 6 stipulates that it is the manufacturer’s (and no longer the consumer’s) responsibility to prove that the device was not designed to become obsolete;
 In the mobile phone sector, measures aimed at encouraging consumers to prioritize Wi-Fi connections via fixed networks in order to limit mobile data usage [13] ;
 Video-on-demand services must ensure that the video playback quality does not exceed the maximum resolution of the digital devices used by their subscribers. [14] ;
 Provisions extend the concept of eco-design to private companies [15] ;
 Electronic communications operators will be required to make multi-year commitments to reduce GHG emissions [16].

However, are these measures enough? Under the Paris Agreement on climate change, we must reduce our individual carbon footprint by 80% by 2050.

But individual action is shaped by one's social and technical environment.

The exponential growth of data and the emergence of « data sphere »—which, moreover, is shaped by monopolistic platforms—poses a problem.".

It appears necessary to foster the emergence of a new data economy by promoting data sharing, secure data exchanges, and digital frugality, as noted by the Newmeric association [17].

The CSR Platform, a national platform for comprehensive initiatives on corporate social responsibility, established by the Prime Minister within France Stratégie in 2013,

« issues opinions on matters referred to it and makes recommendations on social, environmental, and governance issues arising from corporate social responsibility » [18].

It issued an opinion [19] on corporate digital responsibility (CDR) and which emphasizes data-related issues. This opinion stresses the importance of taking CDR into account, which it defines as follows:

« Corporate Digital Responsibility is a new and essential extension of CSR, based on the same principles of trust, accountability, ethics, and engagement with corporate stakeholders. The cross-cutting nature of digital technology and its ubiquity mean that the value it creates must be understood and shared by all, given its democratic, social, and societal implications. This is a matter of trust—a trust that must be continually renewed in light of constantly evolving technologies.
Digital Responsibility (RNE) encompasses numerous areas related to the use of IT and digital resources available to companies. A digitally responsible company should therefore address several major challenges—in line with the Sustainable Development Goals: (…)
 Environmental responsibility, related to the use of data in assessing the environmental impacts of business activities ».

The CSR Platform recommends

« public authorities to take action at the European level to ensure that digital issues are incorporated into the new directives on the non-financial impact of companies and on the duty of care ».

The fight against digital pollution highlights the need to implement new principles in environmental law, namely accountability and digital moderation.