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JORF no.0158 of 10 July 2015
text No. 125



Opinion on combating hate speech on the Internet

NOR: CDHX1513720V ELI: Not available

( Plenary Assembly of 12 February 2015)
(Adoption: unanimously)

1. In 2004, the CNCDH devoted an important chapter to its annual report on combating racism, anti-Semitism and xenophobia, to the specific issue of the Internet (1). It attached particular importance to the fight against hate speech in order to preserve social cohesion and civil peace. Ten years later, the proliferation of hateful content on the web, which regularly feeds on social tensions and the crisis of citizenship (2), becomes a very disturbing phenomenon. It constitutes the ground for growing conflicts between groups and communities calling into question the "living together" democratic. Hate speeches are not just speeches, they can provoke violence, even the most extreme, as shown by the terrorist crimes of January 7-9, 2015 in Paris, inspired by a propaganda of death and hatred widely present on the web.
2. This proliferation raises the issue of the effectiveness of the policies and means implemented and, more generally, the effectiveness of existing legal systems, especially the repressive arsenal. For the NHRC, this worrying situation requires a new state of affairs to be completed as soon as possible to define new strategies for fighting (3). A working group was established in September 2014. He has conducted numerous hearings (4), some of which have at the outset highlighted the unadapted character and above all incomplete of the theme of reflection initially on "the fight against racist, anti-Semitic and xenophobic discourses on the internet" (5). For this reason, CNCDH considers it preferable to retain the expression "hat speech" even if there is no universally accepted definition (6). It must be considered as a generic concept to encompass all forms of expression objectively considered offensive and encouraging contempt, or even hostility or violence, towards ethnic groups, religious groups, women and more generally all minorities (gender, sexual orientation, etc.) (7). This includes the apology of acts of terrorism that is often directed against specific categories of the population, and seriously threatens them. By its broad and operational character, this approach presents the undisputable merit of sticking to reality, since there is no uniformity in the hate speech that is expressed on the internet, it can be structural or conjuncturel (8). The structural discourse imposes a very clear distinction between, on the one hand, the implementation of politicized, constructed content, corresponding to a true propaganda developed by more or less hierarchized groups sometimes located abroad and, on the other hand, expressions of a more "ordinary" hatred, work of internet users feeling legitimized in their speech by the relative anonymity. As for the speech of conjuncturel hatred, it relies mainly on the news. The thrusts of racism, anti-Semitism and Islamophobia in the comments posted on the forums or platforms for discussion about the Israeli-Palestinian conflict give a perfect illustration of this (9), as well as the very many apology messages of the January 2015 attacks (10).
3. The first work of the CNCDH is now undeniably dated as it relates to an era, that of Web 1.0, where the internet was simply designed as a tool for the classification, consultation and processing of data. The user was confined to a passive role: it was only receiving information and sharing it with others. However, the Internet's mode of operation was totally disrupted in the mid-2000s with the revolution of "Web 2.0" (11) following the exponential development of social networks, audiovisual content sharing sites, discussion platforms, blogs and e-mail. The Internet user then became, thanks to the tools at his disposal, an active person on the canvas, a privileged actor of communication, a powerful vector of collective intelligence (12). Technology allows it to issue and share information on a daily basis, to become, if any, a writer, journalist, artist or publisher (13). By becoming a party (14), the internet considerably increases the "capability" of individuals, to resume the terminology of Amartya Sen, that is, their effective capacity to enjoy their freedoms (15). In this regard, the CNCDH must take note of a major societal evolution already noted by the Constitutional Council and the European Court of Human Rights: "The Internet has now become one of the main means of exercising by individuals their right to freedom of expression and information" (16). Certainly, prior to Web 2.0, the right to communicate his thoughts could only be exercised through access to professional media (written press, audiovisual media, publishers) subject to ethical standards and, as such, playing a filter role. But to date, everyone can create a blog, post a comment or put online a video. The Internet now allows, without intermediary (" gate-keeper"), the diffusion by everyone and the sharing by all of them of a wide range of content, the potential audience of which is at the global level (17). If, as Article 11 of the 1789 Declaration states, "the freedom of communication of thoughts and opinions is one of the most valuable human rights," then the Internet is now one of the most valuable instruments of one of the most precious human rights (18). In addition, if the European Convention on Human Rights (ESCHR) provides in its article 10-1 that freedom of expression must be exercised "without consideration of the border", it is the internet, and it alone, which allowed the effective lifting of the borders (19).
4. As a result, the participatory web sounds the monopoly of traditional media for information given to the public (20). Agathe Lepage explains usefully that "the internet represents a paradigm shift in public expression in that it allows everyone to express themselves without filtering, the selection that is rigorous in access to traditional modes of public expression, such as publishing, television, radio (...). Thus it can be estimated that it is truly the internet that gives its full extent to the principle of freedom of expression, since, from the perspective of public communication, it ceases to be theoretical for a considerable part of society " (21). This evolution shows that the editorial control a priori (at the stage of access to traditional media) gives way to a posteriori control (at the stage of the selection of content by the Internet user) (22), users making the sorting themselves once the comments published on a particular site (23). This could only lead to the end of a normal speech (24) and pave the way for a total liberation of affects and subjectivities, as long as not all internet users are media professionals with knowledge and practice of public communication ethics (25). In addition:

- the possibility of anonymity and the use of pseudonym, which result in a strong sense of impunity (26). The use of the internet can even generate a " habit of anonymity" in the internet user who, believing himself invisible and unidentifiable on the web, authorizes behaviors unadapted to life in society or even illicit;
- the fact that communication on the canvas is often weakened, even in the absence of anonymity, the most elementary rules of politeness and courtesy (27).

With the internet we entered the era of "interactive loneliness" (28) where many individuals, released from all rules and constraints, manifest an exacerbated indifference to the fate of their neighbor (29). This is how the new Web 2.0 technologies have become, in spite of them, the vector of the dissemination of speeches that previously had no place in traditional media (30) and whose visibility is necessarily increased by the multiplier effect of the net (31). It is not surprising, therefore, that the last ten years have been marked by a disturbing proliferation of hate speech (32) and therefore by an online banalization of the racist, anti-Semitic, xenophobic, Islamophobic and homophobic speech (33). However, the magnitude of the phenomenon is still poorly known, particularly because of the scattering of statistics (34) and the lack of scientific knowledge in this field. In these circumstances, the CNCDH recommends that the public authorities improve the instruments to know precisely this phenomenon, including the establishment of statistical tools, with a specific breakdown of the acts committed on or via the Internet, and the financing of research in this area. In this regard, the public and private sectors could mobilize and collaborate for the realization of interdisciplinary research projects, based on innovative scientific methods accepting "digital imperative" (35).
5. In addition, the CNCDH regularly recalls, like the Constitutional Council (36) and the Court of Strasbourg (37), that freedom of expression, guaranteed by article 10 of the EHRC, constitutes one of the essential foundations of a democratic society (38). This right "is not only for the information or ideas received with favor or considered harmless or indifferent, but also for those who collide, shock or concern the State or any part of the population. Thus wants pluralism, tolerance and openness without which it is not a democratic society " (39). Therefore, the CNCDH is fundamentally concerned about the preservation, and if necessary by the extension, of the public space of free discussion which is consubstantial to democracy and the rule of law (40). Impertinence, irreverence, disturbing ideas are an invaluable wealth for the awakening of consciences. They have all their place in the public space that cannot be sanitized by a domestication of speech. In this regard, freedom of expression has undoubtedly become the "a cornerstone" of the Web 2.0 as it is the very essence of its function: receiving and issuing information (41). However, if the internet is a formidable space of freedoms, it cannot in any case constitute a "no-right zone" (42) where a totally free market of ideas ("free flow of ideas") flourishes within which the State should refrain from any intervention in order not to distort the free competition of opinions (43). Indeed, article 10-2 of the EHRC states that the exercise of freedom of expression inherently involves "duties and responsibilities" to prevent irresponsible and dangerous use of it for the rule of law (44). Under these conditions, "democratic society is tolerant and not inert. As a militant democracy, it must uphold its essential principles. Hence, it has the duty to combat abuse in the exercise of freedom of expression openly directed against its values " (45). The Court of Strasbourg strongly condemns hate speech by affirming that racist or xenophobic allegations do not benefit from the protection of article 10 of the EHRC (46). The same is true of the words "to incite society to racial hatred and to propagate the idea of a superior race" (47) or "expressions to propagate, incite or justify hatred based on intolerance, including religious intolerance" (48). Any speech incompatible with democracy and human rights does not fall within the scope of freedom of expression (49) and cannot claim to benefit from the guarantees of the Convention in accordance with article 17 of the EHRC (50). As a result, States have a positive obligation to combat, in all circumstances, speeches that, by propagating intolerance, hatred and racism, are contrary to the values of fundamental freedoms and rights. To this end, CNCDH will make recommendations for:

- affirming the digital sovereignty of the State (I);
- to strengthen existing mechanisms to combat hate speech on the Internet (II);
- to have a reactive and innovative procedure for regulating the web (III.)
- adopt a national action plan on digital education and citizenship (IV.).

I. - Affirming the digital sovereignty of the State
A. - Comforting the essential role of the State in guaranteeing fundamental rights and freedoms on the canvas

6. Once again, the tragic events of January 2015 have led to the proliferation of hate speeches on the canvas, of which only a tiny part has been prosecuted. The CNCDH can therefore only reiterate its recommendation to initiate a general reflection on the possible definition of a "digital public order" (51), the internet to remain a space of freedom, respectful of fundamental rights and freedoms, and not a space of impunity. The European Court of Human Rights has not stated in this sense that "the internet is certainly a tool of information and communication that is particularly distinct from the written press, especially as to its ability to store and disseminate information. This electronic network, serving billions of users worldwide, is not and may never be subject to the same rules and controls. Certainly, online communications and their content are more likely than the press to affect the exercise and enjoyment of fundamental rights and freedoms " (52). Yet it is sometimes argued that the internet, because of its immateriality, must escape in fact and in the right to state power (53). But the advent of digital society is not the return to a new state of nature without social contract or political sovereignty (54). In this regard, the CNCDH intends to recall that, with regard to human activities, they would be exercised on the canvas, the State has every freedom to supervise them in order to guarantee full respect for fundamental rights and freedoms (55). This is all the more true that can result from these activities, virtual only in appearance, of the real consequences. However, there is an asymmetry of the powers between, on the one hand, users or associations, and on the other, the Internet providers (56), who are often extremely powerful economic actors. Moreover, if hate speech has multiplied in recent years on the web, it is precisely because of a feeling of impunity from a too weak presence of public authorities on the web (57).

B. - Engage in diplomatic negotiations for the signing and ratification of Additional Protocol No. 189 to the Cybercrime Convention

7. The specific difficulties of the Internet, which is transboundary or without borders, should be highlighted, even though the law remains national and, first of all, territorial application (58). In this regard, the Council of State rightly notes in its 2014 Annual Study entitled " The digital and the fundamental rights " that the question of territoriality presents a strategic dimension: "The ability of States to ensure the protection of the fundamental freedoms of their citizens and the right to use them" (59). Thus, the regulation of the internet has undoubtedly become a major issue of sovereignty (60). With regard to the specific issue of abuse of freedom of expression, French law allows the jurisdiction of French laws and jurisdictions in civil and criminal liability (61). With regard to the latter, the principle of extended territoriality, according to which "the offence is deemed to be committed in the territory of the Republic as soon as one of its constituent acts took place in that territory" (article 113-2, paragraph 2, of the Criminal Code), allows, at least in theory, to retain the jurisdiction of the French criminal law and that of the French judge, provided that the illicit content is accessible from the French territory (62). But in practice, when a company has relocated its activities in "web paradise", the implementation of prosecutions and repression will be doomed to failure (63): "the deterritorialized world of the internet is widely understood by those who make the bed of racism as a great way to escape repression. They use both the legal differences and the internet communication power " (64). During some hearings at the CNCDH, it was mentioned in particular that hosts, whose head office is located in the United States, do not feel bound by the provisions of French criminal law relating to the abuse of freedom of expression (65). Invoking the First Amendment of the American Constitution, they argue that hate speech constitutes a simple opinion, as long as they do not direct and immediately incite the commission of an act of violence (66)... Accordingly, CNCDH considers it urgent to strongly reaffirm its deep commitment to European democratic values. It can therefore, once again, encourage the French State to undertake a strong diplomatic action to have the States hosting hate speech sites sign and ratify the Additional Protocol No. 189 to the Council of Europe's Cybercrime Convention specifically dedicated to racism and anti-Semitism (67).

C. - Setting the territorial scope of Article 6 of the Digital Economy Confidence Act (NCL)

8. Several hearings conducted at the CNCDH have established that the vast majority of sites hosting hate speech are hosted by companies whose head office is located in Ireland or the United States, and which for this reason claim legal extraneousness. This is how large American companies, such as Facebook, Twitter or Youtube, do not feel compelled by the provisions of Article 6 II. of Act No. 2004-575 of 21 June 2004 for confidence in the digital economy (hereafter LCEN) requiring Internet actors to cooperate with the judicial and administrative authorities to enable the identification of persons who contributed to the creation of illicit content (68). As long as the anonymity of Internet users is combined with the lack of cooperation of providers (hosts), the judicial authority is in great difficulty in obtaining, as soon as possible, the identification elements (IP address, etc.) of persons suspected of committing a criminal offence. In addition, it is regrettable that many foreign companies do not feel more bound by Article 6 I. 7 of the CENTA allowing the judicial authority to charge shelterers and access providers an obligation of special (targeted and temporary) surveillance of certain illegal behaviours, being recalled that, with regard to the suppression of offences relating to the abuse of freedom of expression, these providers must also promptly inform illegally
9. In the light of the above, the CNCDH deplores that, because of the non-compliance of their legal obligations by foreign companies, the French public authorities are too often reduced to impotence in the conduct of a policy to combat hate speech on the Internet. For the CNCDH, it is intolerable that the effectiveness of a law may depend on the particular interests of the industry and, more broadly, on economic or political interests. It calls on the State not to abdicate its sovereignty and accordingly recommends to define the territorial scope of Article 6 of the CNCEN, its provisions to apply to any business carrying on economic activity in French territory (70).
10. In addition, the preservation of the general interest and the principle of equality before the law order to ensure compliance with their obligations by the service providers and to punish the breaches found, being specified that the criminal penalties provided for by the NCEN have, to date, never been implemented (71). This situation is all the more unfortunate because it leads to a distortion of competition at the expense of French companies respectful of the law (72) and whose economic weight is very low in the face of the American giants of the web and computer science. Therefore, the CNCDH is firmly convinced that the conquest of digital sovereignty must also be accompanied cumulatively:

- a new dynamization of the French digital industry and the support of innovation in this field in order, as recommended by the Economic, Social and Environmental Council, to "create an ecosystem favourable to the emergence and development of start-ups likely to become the champions of tomorrow's digital" (73). French major players in the economy must also become more involved in the development of the digital industry, in order to promote the values of the Republic and human rights (74);
- a policy of corporate accountability in the sense of respect for human rights (75), including the French conception of freedom of expression.

II. - Reinforce existing mechanisms to combat hate speech on the Internet
A. - To enhance the effectiveness of the media freedom law of 29 July 1881
1. Maintain the offences of opinion and abuse of freedom of expression in the Act of 29 July 1881

11. Introductory title, the CNCDH considers that the existing incriminations, contained mainly in the Act of 29 July 1881 on freedom of the press and exceptionally in the Criminal codeare sufficient (76). In a pluralistic democracy based on freedom of opinion and expression, the offences of abuse of public expression must be strictly limited and defined; and based on proven attacks or risks of harm to people (diffamation, injure, provocation, apology and negationism). This field of repression cannot be expanded without disproportionately affecting the freedom of expression guaranteed under article 10-1 of the EHRC.
12. The Act of 29 July 1881 defines, in a subtle and evolutionary manner, the balance between freedom of expression, which it protects, and its limits. Therefore, offences criminalizing hate speech, abuse of freedom of expression, present a specificity such that it is not permissible to integrate them into the Criminal code. In addition, the particular regime of press offences shows to the Court of Strasbourg and to the European authorities that, even in the absence of decriminalization of our right of communication - decriminalisation desired by the Council of Europe (77) - the French law in this matter is in accordance with the letter and spirit of article 10 of the EHRC (78). Accordingly, the CNCDH is in principle opposed to the introduction in the Criminal code offences relating to freedom of expression. On the other hand, when the legislator wants to specifically criminalize certain behaviours that relate more or less distant to communication, and repress them firmly, it is preferable that it do so within the framework of the communication Criminal code and not in the law of 1881, which loses its soul... (79).
13. In its opinion of 25 September 2014 on the draft law strengthening the provisions on the fight against terrorism, the CNCDH has implemented these guiding principles regarding offences of public provocation to acts of terrorism and public apology of such acts (80). Indeed, Act No. 2014-1353 of 13 November 2014 Strengthening the counter-terrorism provisions planned to remove them from the law of 29 July 1881 to enrol them in a new article 421-2-5 of the Criminal Code (81), on the ground that it is not "abuse of freedom of expression (...) but of facts that are directly responsible for terrorist acts". These new provisions, which do not distinguish between provocation followed by effect and provocation not followed by effect (as do articles 23 and 24 of the law of 29 July 1881 [82] to date), encompass these two types of provocation (83). In the case of a provocation followed by effect (the commission of acts of terrorism), one leaves the field of freedom of expression to enter that of the protection of persons. The issue of the fight against terrorism becomes even more preponderant, as it is, as is the case in new article 421-2-5 of the Criminal Code, of a "direct" provocation, materialized by writings or words explicitly specifying the acts called by provocation. On the other hand, in the hypothesis of unfulfilled provocation, the wrongdoing remains in the field of freedom of expression. With regard to the above, if the CNCDH is not opposed to the introduction in the Criminal code of the public provocation followed by effect, she considered that unattended public provocation must remain in the law of 29 July 1881. The same is true for the public apology of terrorism, which must continue to address specific provisions of press law. The CNCDH is concerned that the release movement of the law of 29 July 1881 of a number of offences relating to the abuse of freedom of expression empty this great law of its substance by causing it to lose its coherence, at the risk of marginalizing it and seeing it disappear in the end.
14. In addition, some emergency procedures, such as immediate appearance and appearance on prior guilt recognition, are not adapted to the contentiousness of the abuse of freedom of expression, whose complexity and values impose firm but measured treatment. This was demonstrated in the wake of the January 2015 attacks by a salve of convictions in immediate appearance for the apology of terrorism, which was made possible by the reform of 13 November 2014 (84). In the current state of the law, in order to guarantee the principle of equality of citizens before the law, the principle of proportionality and the principle of legality, it is urgent that the legislator define precisely the notion of apology of terrorism (85). In addition, the CNCDH recalls that it supports the implementation of alternatives to prosecution in the least serious cases of abuse of freedom of expression and on the condition that they be considered and adapted to this form of crime. Finally, the extension to three years of the limitation period that would result from integration into the Criminal code of these offences is not timely. In fact, putting in public debate an injure or defamation three years after its possible commission may be contrary to the peaceful function of the criminal trial.

2. Improving the procedural framework of the Act of 29 July 1881

15. The law of 29 July 1881 was, since the 19th century, a symbolic pillar of French democracy and its fundamental norm for the protection of freedom of expression (86). Over time, it has shown its strength, radiation, adaptability and ability to maintain a delicate balance between the fundamental right to freedom of expression and its necessary limits. However, a number of procedural provisions of this law are now clearly lag behind the generalization of public expression following the "Web 2.0" revolution, which allowed the exponential development of social networks, audiovisual content sharing sites, discussion platforms, blogs and e-mail. If the law of July 29, 1881 found to apply to online communications, it is today not suitable for mass litigation that the Internet is likely to generate (87). It is a complex law, with hardly accessible content, subject to a very nuanced jurisprudential interpretation, that only specialized lawyers master (88). It is originally intended for communication professionals (press, publishers, media) to supervise their activities and gives rise to a sophisticated litigation in front of highly specialized judges (including the 17th Correctional Chamber of the TGI of Paris). It was not originally intended to apply to any Internet user now becoming a potential public publisher. In other words, the law of July 29, 1881 was not designed for a general public expression, which is no longer filtered by professional media that are responsible and subject to ethical supervision. Nevertheless, the judge's share in the interpretation of this law makes it widely possible to change the law in the contexts and expectations of an era. For this reason, the CNCDH recommended some improvements to the procedural provisions of the Act of 29 July 1881 in order to better combat the proliferation of hate speech on the Internet by non-professional Internet users and to facilitate victims' access to justice:

- improve the clarity and readability of the provisions of the Act of 29 July 1881 (89), including clarifying and updating the concepts of public space and private space in Web 2.0, in the light of new forms of communities and digital networks;
- consider scanning procedures (including assignments and meanings); simplifying and facilitating the refurbishment procedures by creating a digital repository (rather than maintaining different references in this field); provide for the possibility of filing an online complaint (90);
- provide for an effective right of reply on the internet for the benefit of anti-racist associations (91);
- give the judge the power to order the suspension of the operation of a site, like the possibility of suspension of a newspaper for three months in case of provocation to racial hatred;
- give the judge the power to order the arrest of an online communication service for all offences relating to the abuse of freedom of expression (92);
- initiate a reflection on the relevance of the increase and harmonization of limitation periods (93);
- consider the possibility of committing criminal liability to legal persons (94), outside the press bodies (95).

16. In addition, a new and important difficulty has emerged with Web 2.0: the multiplication of anonymous or pseudonym speeches that make it difficult to identify the author of the contentious statements. The word and the writings are all the more disinhibited as their author has a strong feeling of impunity (96). In addition to the difficulty of identifying the authors of racist statements, which largely depends on the cooperation of service providers, especially the hosts (97), the Act of 29 July 1982 on audiovisual communication - which requires, within a very short time, the identification of the authors, within the binding framework of a limiting list of cascade responsibilities (publishing director, author, producer) - does not always seem to be appropriate (98). For example, where sites are based on the anonymity of the publication director and the authors of articles, it would be necessary, for the CNCDH, to reflect on the possible expansion of the list of participants in the offence to those responsible for the association or the underlying structure of the publisher website (99).

B. - Strengthening the effectiveness of the Digital Economy Confidence Act (NCL)

17. At the end of his master's work on cybercrime, Attorney General Robert clearly states that the LCEN " suffers from a general lack of effectiveness" (100). This law, which is widely regarded as a law of quality, could be adapted to better combat hate speech on the internet (101).
18. In the first place, the LCEN generally guarantees the principle of "network neutrality" (102), in the sense that it introduces a limited liability system of providers (access providers and hosts) (103). They are not subject to any general obligation to monitor content (Article 6 I., 7 LCEN) (104). At the outset, it should be pointed out that increasing the responsibility of the providers would pose a risk of "privacy of censorship": in fact, the responsibility to the content could indirectly lead to their de facto delegated a surveillance and sanction mission, which would be to entrust them with a too central role in determining the digital public order. However, the rules of responsibility of providers, major players in the dissemination of hate speech on the Internet, are not satisfactory as long as they are an important source of impunity, due to their complexity (105) and their correlative lack of implementation (106). Under these conditions, it appears necessary to clarify and better distinguish between providers, those who play "an active role" (107) on the content put online, including through reference services or rankings, or even personalized recommendations addressed to Internet users (108). For the CNCDH, the latter should, as soon as the contents are ubiquitous (109), be applied a strengthened liability regime by being subject to obligations, which is also strengthened, such as:

- an obligation to prevent (proactive) detection of contents that may constitute an offence relating to the abuse of freedom of expression (110), the providers being technically more tooled than the Internet users to detect illegal content, including through algorithms based on semantic vectors and contexts (111);
- a correlative obligation of rapid information and cooperation with public authorities to identify and reach perpetrators of public hate crimes.

19. Secondly, it is useful to recall that the civil and criminal responsibilities of the host are to date conditioned by its effective knowledge of illicit activity or information (articles 6 I., 2 and 6 I., 3 of CEN [112]). With regard to the abuse of freedom of expression, it certainly has an obligation to establish a "easy-to-accessible and visible" reporting device for Internet users (article 6 I., 7 paragraph 3 of the CEN [113]), which in practice is not always the case (114). But to date, the violation of this obligation, which is criminally sanctioned (115), does not lead to criminal prosecution (116). In addition, and above all, it must be specified that such a notification has no direct impact on the commitment of the host's responsibility by virtue of an illicit content, provided that only a notification, subject to a very demanding formalism (see Article 6 I., 5 of the CEN [117]), presumption of the acquisition of knowledge of the illicit nature of the content by the provider (118). For the CNCDH, consideration should be given to the legal consequences of the reports. In this regard, it could be considered to strengthen the civil and criminal responsibilities of the host in the event of inaction following a significant number of reports of manifestly unlawful hateful content (119). Of course, these new obligations are not aimed at curbing freedom of expression, innovation and undertaking.
20. Thirdly, as it has just been clarified, users have, beyond reporting, the ability to notify the host of the contentious facts. Moreover, it is only in the case of a regular notification that the illicit content is presumed to be known to the host and allows for its liability (Article 6 I., 5 of the LCEN) (120). This formality, which requires a legal qualification of the litigious facts and the precise identification of the host, is very difficult to achieve by non-lawyers often very poor (121). It is therefore the associations that take over, while each citizen should be able to carry out a "LCEN notification" alone and easily. For the CNCDH, it is therefore urgent to make a simplification and standardization of these different devices (signalment and notification) (122), which must not only organize a "accused-reception" mechanism (123), but still imperatively connect users with mandated associations.
21. In the fourth and final place, section 6 II of the NCEN on the identification of persons who have contributed to the creation of illicit content does not provide any legal basis for the benefit of the victim user. Certainly, section 6 I., 8 of the CENTA states that the judicial authority may prescribe, in reference or upon request, to the hosting provider or, failing that, to the access provider, any measures to prevent injury or to stop damage caused by the content of a communication service to the public online. But nothing like that is provided for in paragraph II. This situation is extremely unreasonable, as long as obtaining identification data can be essential to make an LCEN notification or to initiate a proceeding on the merits. CNCDH therefore strongly recommends that article 6 II of LCEN be supplemented on this point.

C. - Defining and implementing an ambitious and proactive criminal policy

22. The high cost and complexity of investigative actions (124), coupled with the indigence of the means granted to the PHAROS platform, significantly hinder the effectiveness of the criminal response to hate speech on the Internet. Therefore, in order to remedy this situation, the State must imperatively define a proactive and ambitious criminal policy and dedicate sufficient means to it, which implies the realization of a number of improvements such as:

- the generalization of the investigation under pseudonym (125), surrounding it with all the guarantees for the protection of fundamental rights, so as to be able to identify the authors of the illicit content in the event of the lack of cooperation of the hosts or the dissemination of such content on the TOR network or in the dark net;
- the strengthening of European and international cooperation to ensure traceability and to identify hosts of sites broadcasting illicit content;
- the increase in the human, technical and material resources of the PHAROS reporting platform (126) and the organization of traceability of the reports, indicating that they should be informed of the judicial proceedings given at their reporting;
- the coherence of reporting platforms to improve accessibility, visibility and functionality;
- the systematization at the national and local levels of the sharing of information in the framework of regular meetings of institutional actors, internet companies and civil society, in order to carry out a coordinated action in the fight against hate speech and to offer a better legibility to public action (127);
- the mobilization of prosecutors through general instructions and circulars establishing a clear public action strategy for the prosecution of racist, anti-Semitic and xenophobic offences (128), inter alia, by the prosecutors to request the publication of convictions on the Internet (129);
- the mobilization of alternatives to prosecution with the creation of specific modules integrating hate speech on the internet within the framework of citizenship courses (130), as well as the mobilization of alternatives to imprisonment with the creation of such modules within the framework of planned recidivism prevention programmes, in particular, for persons sentenced to a criminal constraint (131);
- the creation of specific modules integrating hate speech on the internet as part of the so-called sanctions-reparation measures (132);
- the extension of the jurisdiction of the Offence Victims Compensation Commission (CIVI) and the Guarantee Fund to all offences relating to the abuse of freedom of expression (133).

D. - Support and enhance associative know-how

23. CNCDH recommends a stronger mobilization of public authorities in order to better combat hate speech constituting a criminal offence or likely to commit civil liability. The associations are currently overwhelmed due to the lack of State commitment and have too few means to initiate complex and costly procedures (134). They are therefore not able to reduce the asymmetry of the powers existing between poor victims and commercial companies, Internet service providers. Therefore, the CNCDH must acknowledge the considerable work and exemplary dedication of the associative sector. It can only invite the public authorities to value associative know-how and to provide funding for these structures to carry out their missions in good conditions. Finally, cultural mediation and specialized prevention must be encouraged and supported by the public authorities.

III. - Disposal of a reactive and innovative web control procedure

24. The State must fully invest the field of the fight against hate speech on the internet by a strong, specialized and coherent presence, only in the capacity to regain its sovereignty in this matter. This is all the more imperative because the proliferation of hate speech on the canvas is likely to generate a mass contentious. It is therefore necessary to have a proceeding that can act preventively and to provide a quick and appropriate response. For this reason, the CNCDH recommends that an independent administrative authority (AAI), existing (135) or to create a general mission to protect digital rights and freedoms. Such a structure should be reactive and innovative, like its object: the digital world. While fully aware of the current trend for an effort to save and rationalize IAAs (136), CNCDH is nevertheless convinced that such an institution is fully justified. Indeed, the objective is to restore the presence of public authorities on the web, following a logic of decriminalization, the judicial authority should intervene only subsidiarily, in the event of failure of the response provided by the AAI (137). In this regard, it must be clarified that this priority given to the effectiveness of the administrative response does not lead to decriminalization, as long as the criminal qualifications persist. Indeed, as has already been clarified, it is not here to repeal offences relating to the abuse of freedom of expression.

A. - To put an end to institutional disorder through the creation of a single, independent and impartial interlocutor

25. To date, there is no inter-ministerial delegation or independent administrative authority that acts as a reference body in cybercrime (138). The CNCDH can only see, in the continuity of the Robert report, the scattering of structures, initiatives and partnerships between public authorities and certain private providers (139). This coincidence of state intervention makes the game of the bad will of commercial companies claiming their extraneousness, to the detriment of those who voluntarily submit to their legal obligations. It is unacceptable that purely economic considerations can prevail over the general interest that commands to effectively combat cybercrime and, consequently, against the proliferation of hate speech on the canvas (140). As a result, it is urgent for the CNCDH to create a single point of contact for all web, institutional and non-institutional actors. Public regulation, in the form of a single and independent interlocutor responsible for ensuring protection-prevention among Internet users and ensuring that a uniform bond base is respected for users and businesses, is the most appropriate solution.
26. Moreover, and above all, the CNCDH intends to recall that the preservation of the general interest cannot allow the establishment of a "private censorship" device in which the technical provider would be the sole custodian of a deletion power without recourse (141). Obviously, there is no question of establishing a state system of a priori control of content posted on the web as it is practiced in authoritarian or dictatorial regimes (142). Such an option, which would disproportionately affect freedom of expression and the right to privacy, would inevitably lead to the disappearance of the internet (143). Under these conditions, the balance of the protection of freedom of expression and the protection of the general interest calls for the impartial and ex post facto control of an independent body alone to maintain a subtle balance between these two principles. The appearance of impartiality and independence could be guaranteed by a pluralistic composition of the AAI bringing together representatives of civil society (associations and NGOs), representatives of commercial providers and justice professionals.

B. - Establish an annual public policy assessment mission to combat the proliferation of hate speech on the Internet

27. The proposed IAA could perfectly anchor in the institutional landscape next to an inter-ministerial delegation, whether it is a new delegation to be created with general competence in cybercrime (144) or the inter-ministerial delegation to the fight against racism or anti-Semitism (DILCRA), which is already developing innovative missions in the context of the fight against racism on the internet. For the CNCDH, the AAI could act as an independent evaluator of public policies that the interdepartmental delegation would be designed to implement. The classic separation of actor/evaluator functions necessarily requires a bicephalous organization. This public action assessment mission could include the annual publication of a report.

C. - Create an observatory of hate speech on the internet

28. The AAI could, through its privileged position and a dialogue with companies, Internet users and public authorities, act as an observatory, to better understand the manifestations of hatred on the canvas, their evolutions and mechanisms of struggle. This observation would be fuelled by qualitative and quantitative assessments of the PHAROS platform, through the conduct of victimization or studies and research investigations conducted by a scientific college, as well as by the creation of a monitoring cell. In order to make the work of the observatory operational, the various actors involved, public and private, would be required to report on the measures and devices implemented. In this framework, the AAI could centralize information from private providers on illicit activities and the means to combat them, as required by Article 6 of the CENA (146). This follow-up by the independent authority would be of merit to capitalize a fine knowledge of the phenomena and to examine in depth the control mechanisms put in place by commercial enterprises. As a result, the CNCDH recommends an annual assessment of the compliance by private providers of their legal obligations, which would participate in increasing visibility and in fine, by the lever of "brand image" and the effect of levelling up, the effectiveness of the device to combat hate speech. A labelling of sites that respect fundamental rights and freedoms is also to be considered (147).

D. - Developing partnerships for the development of a coherent and homogeneous normative base

29. In an approach that favours partnership and dialogue rather than confrontation, the AAI could undertake co-regulation action with private providers (148). Mutually accepted rules are a guarantee of greater efficiency when negotiated with a single interlocutor.
30. First, partnerships could focus on the development of general terms and conditions of use in accordance with existing law and respectful of fundamental rights and freedoms (149). These are unfortunately often opaque and difficult to access. For a better guarantee of freedom of expression, it is essential that the criteria for removal of content be clarified and clarified under clear and accessible general terms of use. The CNCDH must remember that the Committee of Ministers of the Council of Europe adopted a Recommendation on a Human Rights Guide for Internet Users, in which "human rights, universal and indivisible, and relevant human rights standards, prevail over the general conditions of use imposed by private sector actors on internet users" (150).
31. Secondly, partnerships could be intended for the adoption of charters on the definition of editorial rules of sites or on the coherence of the various platforms for reporting illicit content that are developing to date in a completely disordinated manner. The CNCDH emphasizes the importance of working towards the development of a coherent and homogeneous normative base for all the digital professions, contrary to what is currently prevalent as a result of the state's cohesive intervention. It is in fact uncomprehensible, counterproductive and more anti-competitive that some companies, taking advantage of their economic power, can negotiate bonds at discounts or even avoid any obligation, when others do. In no case can this partnership approach be similar to a resignation of the State to economic actors.

E. - Diversify and individualize responses to hate speech on the Internet

32. Flexible law has its limits that the binding rule of law must then be supplanted, chiefly for the abuse of freedom of expression. From the outset, the CNCDH can only too recall the dangers of blind and "standardized" repression in hate speech. Indeed, the answer must be adapted to the offender's profile, the mere negligence of the technical provider not calling the same reaction as the characterised defiance of the foreign company refusing to comply with French obligations; Similarly, the verbal deviation of an Internet user should only take a penalty of the same gravity as that of the activist in the speech of built and reiterated hatred. With regard to a mass litigation, the CNCDH is of the opinion that it is imperative to diversify the responses by favouring a graduated approach based on the seriousness and repeated nature of hate speech ranging from decriminalization to the initiation of criminal proceedings. From this perspective, the AAI could be entrusted with a range of powers, and thus matching the obligations of both private providers and Internet users, mechanisms to prevent and, only in the event of failure, suppress their violations. In this regard, the CNCDH is very attached to the individualization of the response, which involves diversifying the range of tools available to the AAI that could proceed to:

- a warning from the provider that does not comply with its legal obligations, including those provided for in section 6 of the CENA, such a warning that may, if any, be broadcast online and thus induce the provider, in an effort to preserve its brand image, to comply with the requirements imposed by law;
- a warning from the user, which consists in informing the user of the offence and the penalties incurred. At the same time, the AAI could develop a counter-discours formulation action, like the action developed by the AHADOPI on copyright protection, and thus propose to Internet users, when it is available, alternatives to simplistic reasoning, in particular through the dissemination of encrypted indicators (151);
- a mediation between private providers and Internet users, whether they are perpetrators or victims of illicit content. In a relationship that is too often similar to the fight between David and Goliath, it is necessary to provide protection to the economically weak part. To date, it is difficult for the Internet user to submit their comments in the event of a refusal to withdraw illegal content, silence from the duly notified private provider, or the removal of content considered to be abusive;
- the placement of the host in order to remove manifestly illegal content or to republish legal content;
- the placement of the host for the purpose of communicating the identification elements of the author of an illicit content. In the absence of a response from the provider, the AAI could refer the matter to the judge.

33. In addition, several hearings conducted at the CNCDH have established that hosts sometimes experience difficulties in appreciating the " manifestly illegal" nature of content (152), while the constitutional jurisprudence requires them to remove the contents so qualified (153). Also, could the AAI be entrusted with a legal monitoring mission, seized for advice by the hosts and managed a "curb" for suspicious content, that is, a space reserved for temporary storage of such content pending a court decision. At the same time, it could be authorized to order the temporary deference of a suspicious content.
34. With respect to the powers of sanction that may be conferred upon the AAI, it must be exercised within the limits of constitutional requirements. The Constitutional Council has repeatedly affirmed that an administrative authority may be vested in the law of a sanctioning power, provided that it is exclusive of any deprivation of liberty and that its exercise is accompanied by measures to safeguard constitutionally guaranteed rights and freedoms (154). This sanctioning power is all the more circumscribed, particularly with regard to freedom of expression and communication, that it "is a condition of democracy and one of the guarantees of respect for other rights and freedoms; (...) the breaches brought to the exercise of this freedom must be necessary, adapted and proportionate to the objective pursued " (155). Thus, the Sages, recalling that access to the Internet is an integral part of freedom of expression, invalidated the device entrusted to the HADOPI rights protection commission which allowed it to suspend, after implementation of a warning procedure, access to the Internet service of the contravening user. Such a power must imperatively fall within the judicial authority (156). In our case, a judge could very well limit the access to the Internet of a subscription holder, by deciding at short notice on the AAI's referral following an unsuccessful stay.
35. As for the removal of a content by the host, it undermines the free flow of information and hinders freedom of expression. The same is true for the blocking of a site by an access provider (157). Indeed, any pre-expression restrictions on the Internet result in a heavy presumption of incompatibility with article 10 of the EHRC (158). For this reason, the CNCDH considers the intervention of a judge necessary to order and control the withdrawal of illegal content and the blocking of a website (159), as long as these measures constitute serious interference in freedom of expression and communication (160). More specifically, a magistrate could rule in reference within a short period of forty-eight or seventy-two hours on the referral of the AAI. As previously, the intervention of the judge must necessarily be subsidiary, its referral to take place after the publisher or host has been restated by the ATIA to remove or republish the content of the dispute.
36. For the CNCDH the blocking of a site must intervene in the final and last resort, as long as this measure is not technically reliable (161), due to the risks of overlocking and bypassing by chain duplication of the illicit content of site on site. Under these conditions, it is imperative to act first against the host. It is only if the access provider is unknown or difficult to touch, as a result of its establishment abroad, that the access provider must be attractive (162).
37. Finally, the AAI could be assigned a role in the execution and follow-up of court decisions on conviction - providers or Internet users - that it could be responsible for putting online. In such a way as to prevent the redistribution of content deemed illegal, it could, above all, have the power to impose on any provider the power to prevent its reappearance or duplication. Also, as part of its monitoring mission for the enforcement of judicial decisions, the AAI could be empowered to establish a list of sites to be blocked subject to judicial validation, while proceeding with its regular updating (163). This option has a considerable advantage of avoiding the multiplication of reports, LCEN notifications (164) and, where applicable, of costly and complex instances.

IV. - Adopt a national action plan on digital education and citizenship

38. A truly inclusive information society must enable each individual to acquire the skills necessary to understand and interact on the web, as it arises from the requirements of the fundamental right to education, recognized in particular by article 13 of the International Covenant on Economic, Social and Cultural Rights (165). Communicating on the Internet is a fundamental freedom, but also a responsibility that requires learning (166). For the CNCDH, a national action plan (167), including on digital education and citizenship, must be absolutely committed by bringing together the main ministries concerned (State Secretariat for Digital Affairs, Ministry of National Education, Ministry of Interior, Ministry of Justice, State Secretariat for the Family), the National Council for Digital Users, representatives of the teaching world and the family, the social sector This action plan could include:

- the promotion of "digital humanities" through the support of innovation in the direction of the creation of new participation and deliberation procedures to strengthen citizenship (168);
- the valorization of a free and responsible word by the definition of codes of good conduct to users of the web;
- the realization of generalist information campaigns (TV/internet) on the prevention of hate speech (169);
- the conduct of awareness-raising and information actions with respect to parents in order to make them aware of their educational mission in terms of digital citizenship and of their own responsibility for the use of their children in the internet (170). CNCDH is all the more committed to this recommendation as young generations often control the computer tool and new technologies much better than old generations (171);
- the integration in national education programs of a training specific to the internet and its civic use, and, more generally, to the codes of good conduct to be adopted (172);
- the mobilization of national education and civil society actors in the sense of informed use of the internet so as to enable young people and young people to make the sort between good and bad information and so that they can forge their own conviction independently;
- the realization of educational tools for all concerned audiences (users, parents, children, teachers...);
- the strengthening of the capacity of action and synergies among associations mobilized in the fight against racism, anti-Semitism and xenophobia, including through the granting of a specific grant (173);
- the definition and development with civil society of " contra-discours" with regard to young people and young people (174). In this regard, CNCDH must welcome dynamic and innovative initiatives such as the campaign " Push your cry "where a group of associations (LICRA, MRAP, SOS Racisme and the UEJF) has invited Internet users, young and younger, to express spontaneously their rejection of hatred in videos posted online.

Summary of key recommendations

Recommendation 1: The CNCDH recommends that the public authorities improve the tools to know the extent of the proliferation of hate speech on the Internet, including through the development of statistical tools, with a specific breakdown of offences committed on or via the Internet, and the financing of research in this area.
Recommendation 2: CNCDH recommends that the State undertake a strong diplomatic action to have the Council of Europe's cybercrime Convention specifically dedicated to racism and anti-Semitism signed and ratified by States hosting hate speech sites.
Recommendation No. 3: The CNCDH recommends defining the territorial scope of Article 6 of the Digital Economy Confidence Act (LCEN), its provisions to apply to any business operating in French territory.
Recommendation 4: CNCDH recommends that the State boost the French digital industry and support innovation in this area. A policy of corporate accountability in the sense of respect for human rights, including the French concept of freedom of expression, is also essential in the current context.
Recommendation 5: The CNCDH recommends that the public authorities develop associative know-how and provide funding for these structures to carry out their mission to combat racism, anti-Semitism and xenophobia in good material conditions.
Recommendation No. 6: CNCDH solemnly recommends that all offences relating to the abuse of freedom of expression be maintained in the Act of 29 July 1881 on freedom of the press.
Recommendation No. 7: CNCDH recommends certain legislative improvements to better combat the proliferation of hate speech on the Internet by non-professional Internet users and to facilitate victims' access to justice, namely:

- improve the clarity and readability of the provisions of the Act of 29 July 1881, including clarifying and updating the concepts of public space and private space in Web 2.0, in the light of new forms of communities and digital networks;
- consider scanning procedures (including assignments and meanings); simplifying and facilitating refurbishment procedures, including the creation of a digital repository (rather than the maintenance of different references in this field). Generally speaking, it is urgent to clarify and simplify the procedural chain ranging from LCEN reporting and notification devices (standardization of these devices / linking users with mandated associations / improvement of the quality of reports / acknowledgement of receipt), up to the possibility of filing an online complaint;
- provide for a right of reply on the internet for the benefit of anti-racist associations;
- give the judge the power to order the suspension of the operation of a site, like the possibility of suspension of a newspaper for three months in case of provocation to racial hatred;
- give the judge the power to order the arrest of an online communication service for all offences relating to the abuse of freedom of expression;
- initiate a reflection on the relevance of the increase in the limitation period;
- consider the possibility of committing criminal liability to legal persons outside the press bodies.

Recommendation No. 8: CNCDH recommends clarifying and better distinguishing, among Internet providers, those who play an active role in content posted online, including through reference services or rankings, or even personalized recommendations to Internet users. For the CNCDH the latter should, as soon as the contents are ubiquitous, be applied a strengthened liability regime by being subject to obligations, as well as strengthened, such as:

- an obligation to prevent (proactive) unlawful acts by these providers, which are technically used to detect illegal content;
- a correlative obligation of rapid information and cooperation with public authorities to identify and reach perpetrators of public hate crimes.

Recommendation No. 9: CNCDH recommends that consideration be given to the legal consequences of the reports made on the basis of Article 6 I., 7 of the CNCEN. In this regard, it could be considered to strengthen the civil and criminal responsibilities of the host in the event of inaction following a significant number of reports of manifestly illegal hate content. Of course, these new obligations are not aimed at curbing freedom of expression, innovation and undertaking.
Recommendation No. 10: The CNCDH recommends that section 6 II of the CNCEN be devoted to the possibility for the user to request the judge, upon request or in return, the issue of identification data for persons who have contributed to the creation of illicit content.
Recommendation No. 11: CNCDH recommends that the public authorities define and implement a proactive repressive policy against hate speech on the Internet, which implies the realization of a number of improvements such as:

- the generalization of the investigation under pseudonym, by surrounding it with all the guarantees of protection of fundamental rights, so as to be able to identify the authors of the illicit content in case of lack of cooperation of the hosts or dissemination of such content on the TOR network or in the dark net;
- the strengthening of European and international cooperation to ensure traceability and to identify hosts of sites broadcasting illicit content;
- the increase in the human, technical and material resources of the PHAROS reporting platform and the organization of traceability of the reports, indicating that they should be informed of the judicial proceedings given at their reporting;
- the coherence of reporting platforms to improve its visibility and functionality;
- the systematization at the national and local levels of information sharing in the framework of regular meetings of institutional actors, internet providers and civil society, in order to carry out a coordinated action to combat hate speech and to offer a better legibility to public action;
- the mobilization of prosecutors through general instructions and circulars establishing a clear public action strategy for the prosecution of racist, anti-Semitic and xenophobic offences, including prosecutors to request the judicial publication of sentencing decisions;
- the mobilization of alternatives to prosecution with the creation of specific modules integrating hate speech on the internet within the framework of citizenship courses, as well as the mobilization of alternatives to imprisonment with the creation of such modules within the framework of planned recidivism prevention programs, in particular, for persons sentenced to a criminal constraint;
- the creation of specific modules integrating hate speech on the internet as part of the so-called sanctions-reparation measures;
- the extension of the jurisdiction of the Offences Compensation Commission (I.C.I.) and the Guarantee Fund to all offences relating to the abuse of freedom of expression.

Recommendation 12: CNCDH recommends that an independent administrative authority (AAI), flexible, responsive and innovative, be given the following tasks:

- a first individual response after reporting illicit content;
- the development of partnerships with private providers for the development of charters (including on the editorial rules of the sites or the coherence of reporting platforms) or general terms of use in accordance with the existing and respectful of fundamental rights and freedoms;
- an observatory role in order to better understand the manifestations of hatred on the canvas, their evolutions and the mechanisms of struggle;
- a legal monitoring mission. The AAI could thus be seized for advice by the hosts, in case of doubt about the illicit nature of a content, and manage a "curb" for suspicious content, that is, a space reserved for temporary storage of such content pending a court decision;
- an evaluator of public policies in the fight against hate speech on the Internet through the annual publication of a report;
- a mission to label sites respectful of fundamental rights and freedoms.

Recommendation No. 13: CNCDH recommends that the responses be graduated by recalling its attachment to their individualization, which requires diversifying the range of tools available to the AAI that could proceed:

- to a warning from the provider who does not comply with its legal obligations, including those provided for in section 6 of the CENA, such a warning may, if any, be broadcast online and thus encourage the provider, in an effort to preserve its brand image, to comply with the requirements imposed by law;
- a warning to the user by informing the internet user of the offence committed and the penalties incurred;
- mediation between private providers and Internet users;
- to the establishment of the host, for the purpose of withdrawing a manifestly illegal content or the reorganization of a lawful content;
- the placement of the host for the purpose of communicating the identification elements of the author of an illicit content. In the absence of a response from the provider, the AAI could refer the matter to the judge for the same purposes;
- the temporary deference of suspicious content after reporting;
- to the referral judge for the purpose of suspending access to the internet service of a contravening user, after a stay of unsuccessful;
- to the referral judge for the purpose of removing illicit content by a host, after unsuccessful detention;
- to the referral judge for the purpose of blocking a site by an access provider, being specified that due to technical difficulties, it must be used for this measure in the last and last resort.

Recommendation No. 14: The CNCDH recommends that the AAI have a role in the execution and follow-up of court decisions on conviction that it may be responsible for online. In such a way as to prevent the redistribution of content deemed illegal, it could, above all, have the power to impose on any provider the power to prevent its reappearance or duplication. Also, as part of its monitoring mission for the execution of judicial decisions, the AAI could be empowered to establish a list of sites to be blocked subject to judicial validation, while proceeding with its regular updating.
Recommendation No. 15: The CNCDH recommends the adoption of a national action plan, including on digital education and citizenship, by bringing together the main ministries concerned (State Secretariat for Digital Affairs, Ministry of National Education, Ministry of Interior, Ministry of Justice, State Secretariat for the Family), the National Digital Council, representatives of the teaching world and the family, the associative sector, the State Secretariat for the Family). This action plan could include:

- the promotion of "digital humanities" through the support of innovation in the direction of the creation of new participation and deliberation procedures to strengthen citizenship;
- the valorization of a free and responsible word by the definition of codes of good conduct to users of the web;
- the realization of generalist information campaigns (TV/internet) on the prevention of hate speech;
- the conduct of awareness-raising and information actions with respect to parents in order to make them aware of their educational mission in the field of digital citizenship and of their own responsibility for the use of their children in the internet;
- the integration in national education programs of training specific to the internet and its civic use, and, more generally, to the codes of good conduct to be adopted;
- the realization of educational tools for all concerned audiences (users, parents, children, teachers...);
- the strengthening of the capacity of action and synergies among associations mobilized in the fight against racism, anti-Semitism and xenophobia, including through the granting of a specific subsidy;
- the definition and development with civil society of " contra-discours" with regard to young people and young people.

(1) CNCDH, Report 2004. Combating racism and xenophobia. Racism and anti-Semitism on the Internet, La documentation française 2005, p. 239 et s. See CNCDH 14 November 1996, Opinion on the Internet and Human Rights network, online on: http://www.cncdh.fr/. (2) See I. Falque-Pierrotin, Report to the Prime Minister. Combating racism on the Internet, Paris 2010; Mr. Knobel, The Internet of Hate. Racists, anti-Semitic, neo-Nazis, fundamentalists, Islamists, terrorists and homophobics on the web, Berg international publishers 2012. (3) Note that ECRI strongly recommended that the French authorities continue and strengthen their efforts to combat forms of racist expression disseminated through the Internet. CERD (United Nations) also addressed this issue in its General Recommendation No. 35 of August 2013 on combating racial hatred (see CNCDH, Report 2012-2014 on human rights in France. A look at international forums, La documentation française 2014, p. 223 and 225). (4) See the list of persons interviewed in the annex. (5) P. Mbongo, Hearing of 23 October 2014; E. Dreyer, Hearing of 23 October 2014. (6) See Sciences Po - CERI, Colloquium of November 17, 2014: Incentive to discrimination or hatred: cross-prospects on a problematic repression. On the history of this concept and its American genesis, see V. S. Walker, Hate Speech: The History of An American Controversy, Lincoln University of Nebraska Press 1994. (7) See Recommendation No. R (97) adopted on 30 October 1997 by the Committee of Ministers of the Council of Europe which defines the hate speech as " covering all forms of expression that propagates, incites, promotes or justifies racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance expressed in the form of aggressive nationalism and ethnic minorities, See also Committee on the Elimination of Racial Discrimination - CERD, General Recommendation No. 35 on combating racial hate speech (26 October 2013). (8) On this distinction, see Mr. Knobel, "When racism tints his canvas on the Net in 2009", in: CNCDH, Report 2009. The fight against racism, anti-Semitism and xenophobia, La documentation française 2010, p. 274; I. Falque-Pierrotin, op. cit., pp. 18 and 19. (9) I. Falque-Pierrotin, op. cit., p. 18 and s. Conseil supérieur de l'audiovisuel, Lutter contre le racisme et l'antisémitisme sur les médias relevant du droit de la communication audiovisuelle, Paris, November 2009. (10) See T. Quinault Maupoil, "He will be tried for having made the apology of the attack against Charlie Hebdo ", online on: http://www.lefigaro.fr/. (11) See F. Rebillard, Web 2.0 in perspective: a socio-economic analysis of the internet, L'Harmattan 2007; P. Trudel and F. Abran, Managing the Legal Issues and Risks of Web 2.0, University of Montreal, January 2012. (12) See B. Beaude, Les fins d'internet, Fyp 2014, p. 37 et s. (13) P. Achilléas, "Internet et libertés ", JurisClasseur Libertés, fasc. No. 820, No. 27. (14) On the participatory web, see D. Cardon, Internet Democracy. Promises and limitations. Seuil 2010, p. 46 and s. ; E. Derious, "Internet regulation. Freedoms and fundamental rights ", RLDI 2012, no. 78, p. 95. (15) A. Sen, L'idée de justice, Flammarion 2012, p. 277 et s. et p. 309 et s. (16) See Cons. const. 10 June 2009, No. 2009-580 DC, considering No. 12; EDH Court 18 December 2012, Ahmet Yildirim v. Turkey, req. No. 3111/10, § 54. (17) See D. Wolton, Internet and after? A critical theory of new media, Flammarion 2000, p. 115, which supports the restoration of intermediaries on the web, as long as they are the "guarantors of a certain philosophy of information". (18) State Council, Annual Study 2014. Digital and fundamental rights, La documentation française 2014, p. 146. (19) Ibid., p. 145. (20) G. Lucas, "Internet for the best and for the worst?", in: A. Lepage (dir.), Digital opinion. Internet: a new public spirit, Dalloz 2006, p. 95 and s. (21) A. Lepage, "Internet under the law of 29 July 1881 on the press: a mode of communication like another? ", in: A. Lepage (dir.), Digital opinion, op. cit., p. 141 and 142. See also P. Trudel and F. Abran, op. cit., p. 11 and 12, which evoke the "increased role of amateur" in situations formerly dominated by professionals. (22) State Council, Annual Study 2014, op. cit., p. 145; D. Cardon, op. cit., p. 39 and s. (23) D. Cardon, op. cit., p. 41 and 42: who states that this is the "principle of ex post hierarchy, carried out by internet users according to their position in the structure of reputations on the Toile (...) The sites very badly classified in the hierarchies of the web are only accessible to an internet user who would look for them explicitly - which does not remove anything from the unbearable character of anti-Semitic, racist, sexist, homophobic, etc. However, in a spirit close to the first amendment of the American Constitution, the Internet refuses any paternalist policy that would define for others what to say or hear. On the other hand, it trusts the self-organised activity of internet users so that the information that must remain in the bottoms of the web does not go up the visibility scales. Growing and misery of freedom of speech in the digital age." (24) D. Cardon, op. cit., pp. 37 and 38. (25) Ibid., p. 10 and 11: "The public word (...) can now be commented, criticized, treaded, transformed by a large number of people once deemed unfit or ignorant. But internet also aspires in public space the personal expressions of internet users. The web takes hold of conversations that were not recognized as public, taking advantage of the new self-exposure practices of individuals. The line of sharing between private sociability and public debate is found by a new sensitivity that leads individuals to expose themselves and to weave, in front of others, wires between their personal lives and public issues." (26) Y. Charpenel, Hearing of 11 September 2014. (27) C. Moulard, Mailconnexion. The global conversation, Au Diable Vauvert 2005; C. Feral-Schuhl, Hearing of 23 October 2014. (28) See D. Wolton, Internet and after? , op. cit., p. 106; D. Wolton, Thinking Communication, Flammarion 1997, chapter XIV. (29) B. Teyssié, "Man and ant. Variations on the Digital Empire ", in: B. Teyssié (dir.), Digital communication, a right, rights, Editions Panthéon-Assas 2012, p. 61. (30) Mr. Quéméner, Cybersociety. Between hopes and risks, L'Harmattan 2013, pp. 170 and s. ; P. Schmidt (INACH), Audition du 4 septembre 2014. (31) The Court of Strasbourg usefully found that "the modern means of disseminating information and the fact that the site was accessible to all, including to minors, would have multiplied the impact of a posting campaign " (Cour EDH, Gde chbre, 13 July 2012, Swiss Raelian Movement v. Switzerland, req. No. 16354/06). (32) See Mr. Knobel, The Internet of Hate, op. cit. See already A. Lepage, Fundamental Freedoms and Rights in Test of the Internet, Litec 2002, p. 91 and s. On the situation in the United States, see J. Bell, "To damaging those who have no heart: racist expressions and minority rights", in: E. Zoller (dir.), Freedom of expression in the United States and Europe. Dalloz 2008, p. 52 and s. (33) Gilles Clavreul (DILCRA) said on 29 January 2015, during an intervention at the CNCDH, that the number of hate content reports online amounted to 15,000 in 2014. For detailed figures for 2014, see the contribution of Mr.Quéméner and that of the Ministry of Interior in: CNCDH, Report 2014. The fight against racism, anti-Semitism and xenophobia, La documentation française 2015. (34) See Interdepartmental Working Group on Cybercrime, Protecting Internet Users. Cybercrime Report, February 2014, p. 20 et s. (35) See M. Wieviorka, L'imératif numérique, CNRS-éditions 2013. For this author, the human and social sciences must be part of new information technologies using Web 2.0 data and social networks to exchange, communicate, work collaboratively and produce "digital humanity". Examples in support, he explains all the benefits they could make from digital and proposes a new research organization in order to overcome the discipline system, a real obstacle to intellectual innovation. (36) Cons. const. 10 June 2009, no. 2008-580 DC. (37) See in particular EDH Court 7 December 1976, Handyside v. United Kingdom, req. No. 5493/72, § 49; Cour EDH, 28 juin 2012, Ressiot & autres v. France, req. No. 15054/07 and 15066/07. (38) CNCDH 25 April 2013, Opinion on the reform of the protection of secrecy of sources, JORF no. 0134 of 12 June 2013, text no. 90. (39) EDH Court 7 December 1976, Handyside v. United Kingdom, op. cit., § 49. (40) See P. Wachsmann, " Participation, communication, pluralism", AJDA 1998, p. 165; J.-F. Flauss, "The European Court of Human Rights and Freedom of Expression", in: E. Zoller (dir.), op. cit., p. 102. (41) M. Casas & autres, Rapport de recherche - table ronde 2014 " Quel(s) droit(s) pour les médias sociaux ? Freedom of expression and social networks, Aix-Marseille University / IREDIC, p. 5. (42) Comp. A.-S. Choné-Grimaldi, "Online advertising and anti-competitive practices", in: B. Teyssié (dir.), op. cit., p. 233. (43) The Supreme Court of the United States stated in this sense that " According to the Constitution, there is no false idea. So harmful that an opinion may appear, we do not depend on the judges or jury to be corrected, but on the competition of other ideas " (Affaire Gertz v. Robert Welch, 418 US 323 [1974]). (44) J.-F. Flauss, op. cit., p. 98. (45) Ibid., p. 124. (46) EDH Court 23 September 1994, Jersild v. Denmark, req. No. 15890/89. (47) EDH Court 10 October 2000, Ibrahim Aksoy v. Turkey, req. No. 28635/95. (48) EDH Court 4 December 2003, Günduz v. Turkey, req. No. 35071/97. (49) In this sense S. Goldman, "The racist and/or anti-Semitic hate speech in France - Legal aspects ", in : CNCDH, Report 2011. La lutte contre le racisme, l'antisémitisme et la xénophobie, La documentation française 2012, p. 173 which states that "the expression of racism is not an opinion but an offence". (50) "None of the provisions of this Convention shall be construed as implying, for a State, group or individual, any right to engage in any activity or to perform an act aimed at the destruction of the rights or freedoms recognized in this Convention or at any greater limitations of such rights and freedoms than those provided for in that Convention". (51) CNCDH 25 September 2014, Opinion on the bill strengthening the provisions on counter-terrorism, JORF No. 0231 of 5 October 2014, text No. 45. (52) EDH Court 5 May 2011, Drafting Committee Pravoye Delo and Shtekel v. Ukraine, req. No. 33014/05, § 63. (53) See J. P. Barlow, Declaration of Independence of Cyberspace, Editions Hache 1996: "We are creating a world where anyone, anywhere can express their beliefs, as singular as they are, without fear of being reduced to silence or conformity. Your legal concepts of ownership, expression, identity, movement, context do not apply to us. They are based on matter, and there is no matter here." For legal analysis, see Mr.-A. Frison-Roche, "The changes of the law through the internet", in: Internet and our fundamentals, PUF 2000, p. 45 and 46. (54) For more details, see B. Beaude, op. cit., p. 28 and s. (55) See Conseil d'Etat, Etude annuelle 2014, op. cit., p. 133. (56) This concept is understood in this notice within the meaning of Article 2 of Directive 2003/31/EC of 8 June 2000 on certain legal aspects of the services of the information society, including electronic commerce, in the domestic market: "For the purposes of this directive, it is understood by: (...) (b) "prestatary": any natural or legal person who provides a service of the information society". In addition, Article 1, paragraph 2, of Directive 2003/31/EC amending Directive 98/34/EC providing for an information procedure in the field of technical standards and regulations defines the service of the information society as "any service normally presumed against remuneration, remotely by electronic means and at the individual request of a service recipient". (57) See E. Walter (HADOPI), Hearing of November 20, 2014: "Before: The idea of self-regulation must be taken care of. It is not because the state cannot fulfill its functions that it must delegate them to private actors. It's a dangerous drift. Especially because it is because the public force has not been able to adapt to apply the laws that this idea exists." (58) See Mr. Vivant, " Cybermonde: Network Law and Rights", JCP ed. gén. 1996, I., 3969; F. Marchadier, "The web ignores borders and internationality is consubstantial", in: L. Pailler (dir.), Social networks on the internet and the right to privacy, Larcier 2012, p. 6. (59) State Council, Annual Study 2014, op. cit., p. 240. (60) P. Bellanger, Digital Sovereignty, Stock 2014. (61) For more details, see E. Dérieux and A. Granchet, Social Networks Online. Legal and ethical aspects, Lamy 2013, pp. 34 and s. E. Derious, " Rules of procedure applicable to the prosecution of abuse of freedom of expression. Guarantee of freedom of expression or media privilege?", RLDI 2013, no. 89, p. 61 and s. ; J. Francillon, "The criminal law in the face of cybercrime and cybercrime", RLDI 2012, p. 103; E. Martin-Hocquenghem, "The principle of territoriality of criminal law and offences committed on the Internet", in: B. Teyssié (dir.), op. cit., p. 495 and s. (62) Cass. crim. 9 September 2008, no 07-87.281, which states that French criminal law is applicable to a site intended for the French public, the offence being then considered as committed in the territory of France. On this question, see also A. Lepage, "Reflexions sur l'adaptation du droit pénal à l'internet", in: B. Teyssié (dir.), op. cit., p. 493; Interdepartmental Working Group on Cybercrime, op. cit., p. 211; State Council, Annual Study 2014, op. cit., p. 325. (63) For example, in the event of a default conviction of an American host by a French judge on the basis of Article 113-2, paragraph 2, of the Criminal Code, the American courts will refuse to enforce the decision, in the absence of a procedure similar to the defect in American law. Indeed, the Supreme Court of the United States considers that the evidence of the accused is a constitutional right based on the 6th Amendment (United States v. Gagnon 470 US 522 [1985]; see also J. Pradel, Comparative Criminal Law, Dalloz 2002, no. 472, p. 592 and s.). (64) I. Falque-Pierrotin, op. cit., p. 27. (65) P. Schmidt (INACH), Hearing of 4 September 2014; B. Louvet (LICRA), Hearing of 4 September 2014. (66) For more details on United States law, see S. Preuss-Laussinotte, Freedom of Expression, Ellipse 2014, pp. 27 and s. ; E. Zoller, " The Supreme Court of the United States and freedom of expression ", in: E. Zoller (dir.), op. cit., p. 253 and s. (67) See already CNCDH, Report 2010. The fight against racism, anti-Semitism and xenophobia, La documentation française 2011, p. 166; CNCDH, Report 2013. The fight against racism, anti-Semitism and xenophobia, La documentation française 2014, p. 215. (68) State Council, Annual Study 2014, op. cit., p. 245; E. Derious, "Dissemination of racist messages on Twitter. Host requirements ", RLDI 2013, no. 90, p. 27 and s. (69) Interdepartmental Working Group on Cybercrime, op. cit., p. 185 and s. See already I. Falque-Pierrotin, op. cit., p. 59. (70) In this sense State Council, Annual Study 2014, op. cit., p. 245. (71) Interdepartmental Working Group on Cybercrime, op. cit., pp. 187 and 188. (72) Ibid., p. 185 and 186. (73) Economic, Social and Environmental Council (ESC) January 13, 2015, Digital data, an education and citizenship issue (reporter: E. Peres), p. 96. (74) See P. Lemoine, Report to the Government. The new grammar of success. The digital transformation of the French economy, November 2014, p. 15: " It is time for large French groups to turn the page of the disappointments and humiliations that some have been able to know by wiped gadins during the internet bubble. It was ten years ago and the context is no longer the same. We have to start with strong, original and mobile projects. We offer examples of such projects in the bank ("Secure Anonymous Payment"), in the trade ("La libraire du futur"), in the manufacturing industry ("La libraire du futur") A car for youth, designed severally and prototyped in FabLab ", in transport ("A universal custom mobility pass"), in health ("Numerical life, chronic diseases"), in the Administration "Regional innovation network for local services". A particularly strong emphasis is placed on projects that can contribute to our growth model: acceleration of professional mobility (" Emploi Store", " Platform for inter-public mobility"), ecological issues and energy transition ("Green Button à la française"), a living link between public logic of general interest and the logic of common goods carried by major foundations (Wikipedia, Mozilla, OpenStreetMap, etc.) ". (75) CNCDH 24 October 2013, Companies and Human Rights: Opinions on the issues of France's application of the United Nations Guiding Principles, JORF No. 0266 of 16 November 2013, text No. 56. (76) In this sense, Interdepartmental Working Group on Cybercrime, op. cit., p. 152; M. Knobel, Audition du 4 septembre 2014; P. Mbongo, Hearing of 23 October 2014; Mr. Quéméner and J. Ferry, Cybercrime. World Challenge, 2nd ed., Economica 2009, p. 155. (77) See Mr.-F. Bechtel, Report No. 409 on behalf of the Law Commission (...) on the Bill (...) on Security and Counter-Terrorism, National Assembly November 14, 2012, p. 54. (78) CNCDH 20 December 2012, Opinion on the Law on Security and Combating Terrorism, online on: http://www.cncdh.fr/. CNCDH 25 September 2014, Opinion on the draft law strengthening the provisions on combating terrorism, op. cit. (79) Ibid. (80) See CNCDH September 25, 2014, Opinion on the draft law strengthening the provisions on the fight against terrorism, op. cit. (81) Article 421-2-5 of the Criminal Code: "The fact of directly provoking acts of terrorism or publicly apologizing these acts is punishable by five years of imprisonment and 75,000 € of fine. Penalties are extended to seven years in prison and to 100,000 € in fine when the facts were committed using an online public communication service. When the facts are committed through the written or audio-visual press or the communication to the public on-line, the specific provisions of the laws governing these materials are applicable with regard to the determination of the responsible persons". (82) The distinction between provocation followed by effect (Article 23 of the Law of 29 July 1881) and unattended provocation of effect (Article 24 of the Law of 29 July 1881) has a meaning: in short, the first "specification" is a case of complicity with that advantage which the judge is exempted from the obligation to prove one of the adjudicators of Article 121-7, paragraph 2, of the Penal Code (don, promise, etc.). The second, she, makes punishable, by making an autonomous offence, a case of complicity that would not be due to a main offence ("not followed by effect"). (83) French law is in compliance with Council Framework Decision 2008/919/JAI of 28 November 2008 amending Framework Decision 2002/475/JAI of 13 June 2002 on combating terrorism. Under this document, incitement to commit acts of terrorism must be repressed, whether or not it is followed by effect. (84) See J. Alix, "The crackdown on incitement to terrorism", Gaz. Pal. 2015, to be issued. (85) See C. Godeberge and E. Daoud, " Is the law of 13 November 2014 an infringement of freedom of expression? From the new definition of provocation to acts of terrorism and the apology of these acts ", AJ Pénal 2014, p. 563 and 564. (86) See CNCDH 25 April 2013, Opinion on the reform of the protection of secrecy of sources, online on: http://www.cncdh.fr/. (87) In this sense E. Dreyer, Hearing of 23 October 2014; A. Philippe, Audition du 11 septembre 2014. (88) For a general presentation, see N. Mallet-Poujol, "Freedom of expression on the Internet: aspects of internal law", Rec. Dalloz 2007, p. 591 and s. (89) E. Derieux, Audition du 27 novembre 2014; A. Lepage, Hearing of 3 December 2014. (90) In this sense C. Féral-Schuhl, Hearing of 23 October 2014. (91) In this sense, E. Dreyer, Hearing of 23 October 2014, which states that to date Article 13-1 of the Act of 29 July 1881 does not provide for any specific Internet response rights. (92) In this sense E. Dreyer, Hearing of 23 October 2014, which states that section 50-1 of the Act of 29 July 1881 does not aim to date all racist words. He adds, however, that this jurisdiction should be removed from the referees' judge to give it to the judge of freedoms and detention. (93) For reflections, see E. Dreyer, " The extension of the limitation period for the suppression of racist or xenophobic words. Commentary to Article 65-3 of the Act of 29 July 1881 ", LEGICOM 2006/1, No. 35, p. 107 and s. ; E. Dreyer, "The Constitution does not oppose the abandonment of the quarterly press requirement," Rec. Dalloz 2013, p. 1526. (94) In this sense, see EDH Court 10 October 2013, Delfi AS v. Estonia, req. No. 64569/09. (95) Comp. E. Dreyer, Hearing of 23 October 2014, which proposes to include in the Criminal Code offences relating to racism. This would, in particular, allow for the criminal liability of legal persons. (96) E. Derieux, "Social networks and responsibility for infringement of personality rights", RLDI 2014, n° 100, p. 79. (97) See infra. (98) Article 93-3 of Act No. 82-652 of 29 July 1982 on audiovisual communication, defining the "in cascade" liability regime, states that "the director of the publication or (...) the co-director of the publication shall be prosecuted as the main author, when the incriminated message has been fixed before his communication to the public". He adds that "if the author fails, and if the author fails, the producer will be sued as the main author" and that, "when the director or co-director of the publication is questioned, the author will be prosecuted as an accomplice." It is further mentioned that "may also be prosecuted as an accomplice any person to whom section 121-7 of the Criminal Code will be applicable." (99) In this sense A. Philippe, Audition du 11 septembre 2014. (100) Mr. Robert, Hearing of 3 December 2014. (101) On the LCEN faults, see J. Bossan, "The criminal law confronted with the diversity of internet intermediaries", RSC 2013, p. 295 and s. (102) On the principle of network neutrality, see J. Huet and E. Dreyer, Digital Communication Law, LGDJ 2011, p. 16 and s. ; E. Derious, " Between libertarian spirit and necessary regulation. About the neutrality of the internet. An asset for the development of the digital economy ", RLDI 2010, no. 64, p. 6 and s. (103) On the ease of responsibility of access providers and hosts, see J. Huet and E. Dreyer, op. cit., pp. 121 and s.; E. Derious, "Social networks and responsibility for infringement of personality rights", op. cit., p. 82 and s. Comp. C. Castets-Renard, Internet Law: French and European Law, Montchrestien 2012, p. 289 and s., which evokes "conditional irresponsibility" of hosts and internet providers. (104) Article 6 I., 7 LCEN: "The persons referred to in 1 and 2 (access providers and hosts) are not subject to a general obligation to monitor the information they transmit or store, or to a general obligation to monitor the circumstances that reveal illicit activities. The preceding paragraph is without prejudice to any targeted and temporary surveillance activity requested by the judicial authority." (105) On this question, see J. Bossan, op. cit., no. 33 and s. See also J.-Y. Monfort, Audition of September 25, 2014, which evokes that web users are "disarmed" in front of hosting providers, whose responsibility can only be incurred under extremely strict conditions, the "LCEN notifications" being in practice difficult to realize. (106) See Interdepartmental Working Group on Cybercrime, op. cit., p. 185. (107) This is the criterion applied by the Court of Justice of the European Union on the basis of Article 14 of Directive 2000/31/EC on electronic commerce (see notably CJEU, 12 July 2011, L'Oréal & autres v. E-Bay, n° C-324/09). (108) See Council of State, Annual Study 2014, op. cit. p. 272 et s., proposing to define the legal category of platforms. (109) In this sense, the CJEU states that the activity of the search engines leads to conferring on the data a "ubiquitous" character, which can then be consulted " instantly by an indefinite number of Internet users around the world, regardless of any intention of their transmitter to consult beyond its member state of establishment and outside its control " (CJEU 25 October 2011, eDate Advertising GmbH & others, no. CJUE 13 May 2014, Google Spain SL, Google Inc. v. AEDP M. Costeja Gonzales, n° C-131/12, § 80. (110) Comp. Interdepartmental Working Group on Cybercrime Control, op. cit., p. 185, which recommends that providers (especially homeowners, search engine suppliers and access providers) be legally required to establish a preventive monitoring obligation with respect to the detection of illicit content of a particular degree of gravity and that is technically appropriate for such detection. For this purpose, it is recommended that the offences already listed in Article 6 I., 7 of the NCEN be addressed. (111) See T. Berthier, Haines numériques, Tribune published on November 28, 2014, online on: http://www.crif.org/. D. Corchia (Concileo), Hearing of 16 December 2014. (112) Article 6 I., 2 of the CENTA states: "The natural or legal persons who provide, even free of charge, for the provision of the public by means of communication services to the public online, the storage of signals, writings, images, sounds or messages of any kind provided by the recipients of these services shall not be effective in seeing their civil liability arising out of the activities or information stored at the According to Article 6 I., 3 of the CENA, persons with the quality of a host may not see their criminal liability incurred " because of the information stored at the request of a recipient of these services if they did not actually know of the illicit activity or information or if, as soon as they were aware, they acted promptly to withdraw this information or make it impossible to access it." (113) Article 6 I., 7 paragraph 3 of the CEN: "In view of the general interest attached to the suppression of the apology of crimes against humanity, incitement to racial hatred and child pornography, the persons mentioned above (hostors and providers of access) must contribute to the fight against the dissemination of the offences referred to in the fifth and eighth paragraphs of Article 24 of the Law of the Press As such, they must establish an easily accessible and visible device that allows anyone to bring to their knowledge this type of data ". (114) The Paris Court of Appeal found that the device set up to bring to Twitter the illicit content is not sufficiently visible and accessible (CA Paris 12 June 2013, UEJF v. Twitter Inc. (Sté), No. 13/06106, Rec. Dalloz 2013, p. 1614, note C. Manara; RSC 2013, p. 566, obs. J. Francillon). (115) Pursuant to Article 6 VI., 1 of the CEN Act, the penalty is one year in prison and 75,000 euros in fine. (116) J. Huet and E. Dreyer, Digital Communication Law, op. cit., p. 130. (117) Article 6 I., 5 of the NCEN: "The knowledge of the contentious facts is presumed to be acquired by the persons designated in 2 (hosts) when notified to them:
- the date of notification;
- if the notifier is a natural person: his name, first name, occupation, domicile, nationality, date and place of birth; if the applicant is a legal entity: its form, its name, its head office and the body that legally represents it;
- the name and domicile of the recipient or, if it is a legal person, its name and its head office;
- description of the facts and their precise location;
- the grounds for which the content must be removed, including the mention of legal provisions and evidence;
- the copy of the correspondence addressed to the author or publisher of the contentious information or activities requesting their interruption, withdrawal or modification, or the justification of what the author or publisher could not be contacted.
(118) See TGI Paris 3e chbre 13 January 2011, Légipresse 2011, p. 213.
(119) In this sense, J.-B. Souffron (Secretary-General of CNNum), Hearing on 3 February 2015.
(120) See Cass. 1st civ. 17 February 2011, Rec. Dalloz 2011, p. 1113, note C. Manara, which states that the notification issued to the visa of the law of 21 June 2004 must include all the mentions prescribed by this text. It then considers that the Court of Appeal, which found that the information set out in the notice was insufficient within the meaning of section 6-1-5 of this Act to satisfy the obligation to describe and locate the contentious facts charged to the notifier (...) was able to deduce that no breach of the obligation of promptness to remove the illicit content or to prohibit the access to it could not be reproached.
(121) C. Lefranc (LICRA), Audition du 4 septembre 2014 ; J.-Y. Monfort, Audition du 25 septembre 2014.
(122) In this sense National Digital Council December 17, 2013, Opinion No. 2013-6 on illegal content and behaviour online, online at: www.cnumerique.fr.
(123) In this sense I. Falque-Pierrotin, Hearing of January 21, 2015.
(124) See on this point I. Falque-Pierrotin, op. cit., p. 52.
(125) See in this regard the contribution of Mr. Quéméner, in: CNCDH, Report 2014. The fight against racism, anti-Semitism and xenophobia, op. cit. See also Interdepartmental Working Group on Cybercrime, op. cit., pp. 237 and 238.
(126) In this sense, see CNCDH, Report 2010, op. cit., p. 165.
(127) In this sense I. Falque-Pierrotin, op. cit., p. 48; L. Charef (CCIF), Hearing of 16 December 2014.
(128) In this sense Y. Charpenel, Audition du 11 septembre 2014.
(129) In this sense, see CNCDH, Report 2010, op. cit., pp. 165 and 166.
(130) Article 41-1 2° of the Code of Criminal Procedure.
(131) Article 131-8-2 of the Criminal Code and articles 713-42 of the Criminal Procedure Code.
(132) Articles 131-3, 8° of the Criminal Code and 12-1 of Ordinance No. 45-174 of 2 February 1945 on child offenders.
(133) In this sense, S. Goldman, op. cit., p. 177.
(134) It is useful to recall that the authors of illicit content and the hosts are often located abroad, which requires the hiring of legal channels in the country where they reside or the place of the head office. In addition, screen capture is not sufficient evidence. In order to initiate legal proceedings, it is necessary to make a finding of bailing on the Internet (see S. Goldman, op. cit., p. 176).
(135) There are at least three administrative authorities that could see their expanded jurisdiction: CSA, HADOPI or CNIL.
(136) In this sense, see Information Report of the Committee for the Evaluation and Control of Public Policy of the National Assembly on Independent Administrative Authorities, Tome I., October 2010; Report of the Committee on Constitutional Laws, Legislation, Universal suffrage, Rules and General Administration of the Senate on Independent Administrative Authorities, June 2014.
(137) On decriminalization, see C. Lazerges, Introduction to Criminal Policy, Harmattan 2000; H. Jung, Was ist Strafe?, Nomos 2002, p. 68 et s.
(138) See Interdepartmental Working Group on Cybercrime, op. cit., p. 138 and s. : If, with regard to the development of the digital economy and the fight against the digital divide, they are provided by a specific ministerial department, the Interdepartmental Delegation for Economic Intelligence and the Delegation for the Uses of the Internet; if, with regard to cyber defence, it is entrusted to the General Secretariat of Defence, which is placed directly under the auspices of the Prime Minister; if, with regard to technology security and the technical response to cyber-attacks, they fall under the responsibility of the Prime Minister, at least for companies considered to be sensitive, of the National Information Systems Security Authority (ANSSI); there is no comparable organization for the fight against cybercrime, shared between the police and justice and many specialized administrations, while the existing independent administrative authorities, whose competence is often limited to a particular sector (protection of nominal data, online games, copyright protection...), are not intended to play a federative role.
(139) In this sense, Mr. Robert, Hearing of December 3, 2014.
(140) Article 6 I, 7 of the LCEN.
(141) See Council of State, Annual Study 2014, op. cit., p. 225 and s.
(142) See P. Achilléas, Internet and Freedoms, op. cit., no. 38.
(143) In this sense P. Mbongo, Audition du 23 octobre 2014.
(144) See Recommendation No. 7 of the Robert Report on the Establishment of an Interdepartmental Delegation to Combat Cybercrime (Interdepartmental Working Group on Cybercrime, op. cit., p. 141).
(145) See in this regard the contribution of DILCRA, in: CNCDH, Report 2014. The fight against racism, anti-Semitism and xenophobia, op. cit.
(146) See above.
(147) It should be noted, for example, the net+sûr label, launched by the AFA in 2005, which aims to guarantee a parental control tool, access to information intended to protect children, as well as a single-click access to an abuse reporting form (see http://www.afa-france.com/netplussur.html).
(148) See E. Dérieux, Régulation de l'internet , op. cit., p. 98, qui écrit : Is any form of self-regulation or reference to ethics or ethics possible to discipline the uses of the internet shared by professionals and amateurs? Wouldn't it be primarily for self-defense and self-justification of some? Wouldn't economic concerns and industrial interests prevail over the rest? .
(149) In this regard, we can cite the Charter of e-hosting and internet service providers in the fight against specific content of the Association of Internet Service Providers (AFA), known as the odious content charter, signed in June 2004, at the same time as the promulgation of the LCEN (see http://www.afa-france.com/charte_contenusodieux.html).
(150) Council of Europe Committee of Ministers 16 April 2014, Recommendation CM/Rec (2014) 6 on a human rights guide for internet users.
(151) For example, we can cite the 10 key figures on immigration in France published on the government website on the occasion of the inauguration of the museum of history and immigration in December 2014, which refer to the ideas received on the number of immigrants in France, their origin or even their qualification level (see: http://www.govement.fr/10-chiffres-qui-vont-surl-sur-prendre-
(152) C. Gay and N. d'Arcy (AFA), Audition du 9 octobre 2014. See also O. Roux, The manifestly illegal content... is not always obvious, RLDI 2013, no. 95, p. 36 and s.
(153) Cons. const. 10 June 2004, No. 2004-496 DC, considering No. 9.
(154) Cons. const. 17 January 1989, no. 88-248 DC: the law can (...) without prejudice to the principle of separation of powers, provide the independent authority responsible for guaranteeing the exercise of the freedom of audiovisual communication of powers of sanction within the limits necessary for the fulfilment of its mission (considering 27); Consst. 28 July 1989, n° 89-260 DC: the principle of the separation of powers, not that no principle or rule of constitutional value hinders that an administrative authority, acting in the context of prerogatives of public power, may exercise a power of sanction, on the one hand, that the sanction likely to be imposed is exclusive of any deprivation of liberty and, on the other hand, that the exercise of the power of sanction is guaranteed
(155) Cons. const. 10 June 2009, no. 2008-580 DC: Considering that the powers of sanction instituted by the criticized provisions empower the rights protection commission, which is not a jurisdiction, to restrict or prevent the access to the Internet of subscription holders as well as of the persons they make benefit of it; that the competence recognized to that administrative authority is not limited to a particular category of persons but extends to the entire population; that its powers may lead to restrict the exercise, that, under these conditions, in the light of the nature of the freedom guaranteed by Article 11 of the 1789 Declaration, the legislator could not, in any way whatsoever, entrust such powers to an administrative authority with the aim of protecting the rights of the holders of the copyright and neighbouring rights.
(156) Act No. 2009-1311 of 28 October 2009 on the criminal protection of literary and artistic property on the Internet.
(157) The Constitutional Council has validated a system of administrative blocking of a site in the fight against child pornography (Cons. const. 10 March 2011, no. 2011-625 DC: the disputed provisions confer on the administrative authority only the power to restrict, for the protection of internet users, access to online communication services when and to the extent that they broadcast images of child pornography; that the decision of the administrative authority is likely to be contested at any time and by any interested person before the competent court, if any, by reference; that, under these conditions, these provisions ensure a conciliation that is not disproportionate between the objective of constitutional value of safeguarding public order and the freedom of communication guaranteed by Article 11 of the Declaration of Human and Citizen Rights of 1789 ).
(158) In this sense, see the concordant opinion of Judge Paulo Pinto de Albuquerque (under Court EDH 18 December 2012, Ahmet Yildirim v. Turkey, op. cit.) referring to the case Banatan Books, Inc. v. Sullivan (372 U.S. 58 (1963): Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity).
(159) In this sense, see National Assembly, Ad hoc Commission on Reflection and Proposals on Law and Freedoms at the Digital Age, Recommendation on Article 9 of the Bill Strengthening Provisions on Combating Terrorism, which recalls that the precondition for a judicial decision appears to be an essential principle, in order to respect all interests in the presence, when it is considered to block access to illicit content on digital networks. Not only is this prerequisite a strong guarantee of freedom of expression and communication, but it also aims to preserve the neutrality of networks.
(160) See in this sense Cons. const. 10 March 2011, no. 2011-625 DC.
(161) In this sense, O. Esper, F. Maganza and T. Guiroy (Google France), Audition du 25 septembre 2014. The National Digital Council has defended an identical position in its recent opinion on Article 9 of the bill strengthening the provisions on counter-terrorism (No. 2014-3 of Article 9 of the bill strengthening the provisions on counter-terrorism, online at www.cnumerique.fr).
(162) Comp. Cass. 1st civ. 19 June 2008, No. 07-12.244, which considers that the requirement for measures to stop a disorder is not subject to the prior questioning of the hosts. However, section 6 I., 8 of the CENTA states that the judicial authority may prescribe, in reference or upon request, to the hosting provider or failing to the access provider, any measures to prevent injury or to stop damage caused by the content of a communication service to the public online.
(163) See Mr. Imbert-Quaretta, Operational Tools for Preventing and Combating Online Counterfeiting. Report to the Minister of Culture and Communication, May 2014, p. 23 and s.
(164) It should be noted that the Court of Cassation, on the visa of articles 6 I., 2, 6 I., 5 and 6 I., 7 of the CNCEN, has ruled that a new notification respecting the formalism of Article 6 I., 5 referred to above, must be carried out on every reappearance of the illicit content. If the hosts, without further notification, were to act promptly by removing or making access to illicit content impossible (in this case, a counterfeit image), this would result in a general obligation to monitor them (Cass. 1st civ. 12 July 2012, no. 11-151.165 and 11-151.188).
(165) P. Achilléas, A global society of inclusive information as a prerequisite for the formation of public opinion, in: A. Lepage (dir.), Digital opinion, op. cit., p. 121.
(166) In this sense P. Schmidt (INACH), Audition du 4 septembre 2014.
(167) See Economic, Social and Environmental Council (ESC) January 13, 2015, op. cit., p. 72 calling on the Government to make digital education the major national cause of 2016 .
(168) In this sense, Mr. Wieviorka, op. cit., p. 41.
(169) In this sense see I. Falque-Pierrotin, op. cit., p. 54.
(170) See I. Falque-Pierrotin, op. cit., p. 55.
(171) See on this subject S. October (Ministry of Culture and Communication / General Secretariat / Department of Studies, Forward-looking and Statistical), Two inches and neurons. The youthful cultures of the media era in the digital age, La documentation française 2014.
(172) See I. Falque-Pierrotin, op. cit., p. 54.
(173) See I. Falque-Pierrotin, op. cit., p. 57.
(174) During the hearings at the CNCDH, the Quatradure du Net (J. Zimmermann, Hearing of 2 October 2014; F. Tréguer, Audition du 9 octobre 2014) and Renaissance numérique (G. Buffet, Audition du 2 octobre 2014) particularly emphasized the need for the definition of such counter-discours. This issue was also addressed by P. Cartes (Twitter) and D. Reyre (Facebook France) at the hearings on 2 October 2014.

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