The constitutional council censors the offense of online contempt

17 May 2024 / Interviews

The Constitutional Council rendered a major decision on Friday, censoring one of the most controversial provisions of the bill aimed at securing the internet (SREN). This measure, which proposed the creation of an offense of online contempt, was deemed unconstitutional.

Definitively adopted on April 10, this provision aimed to repress online content which “undermines the dignity of a person or is of an insulting, degrading or humiliating nature”, or which “creates an intimidating, hostile or offensive situation” in digital space. However, the Constitutional Council considered that this measure was an “attack on the exercise of freedom of expression and communication which is not necessary, appropriate and proportionate”. The main argument against this provision was the difficulty of objectively characterizing the offense, which was based on subjective elements depending on the victim's perception.

In addition to this measure, the Constitutional Council also censored four articles of the bill, considered to be “legislative riders”. These articles were judged to have no direct or indirect connection with the initial subject of the text.

Article 10, in particular, was a residue of the ambition of the general rapporteur of the text to the Assembly, Paul Midy (Renaissance), to put an end to online anonymity. It provided that the State would set itself the objective of guaranteeing that “100% of French people can have access to a free digital identity” by January 1, 2027. This measure aimed to offer each citizen a unique and secure digital identity for access various online services.

Article 11 concerned the establishment of a service integrating access to all national and local public services, including social security organizations and those responsible for social rights and benefits. This service was to secure and facilitate the communication of data between the different administrations, organizations and local authorities, in order to simplify administrative procedures for citizens.

Article 18 proposed launching, on an experimental basis, a mediation system for online communication disputes. This system was to rely on specialized associations to resolve disputes between users of digital platforms, thus offering an alternative to traditional legal procedures.

Finally, article 58 provided for referral to the Statistical Confidentiality Committee when the administration considered refusing certain requests for consultation of administrative documents. This committee was to assess the legitimacy of refusals to disclose documents to guarantee administrative transparency while protecting sensitive data.

The Constitutional Council ruled that these articles did not have a sufficient link with the initial bill, aimed at strengthening internet security. As a result, they were censored for non-compliance with the principle of clarity and sincerity of parliamentary debate, which requires that the provisions of a law be related to its main object.

This decision marks a turning point in the regulation of the internet in France, highlighting the need to find a balance between the protection of individuals online and the preservation of fundamental freedoms, in particular freedom of expression. The SREN bill will have to be reviewed and adjusted to respond to the criticisms of the Constitutional Council while seeking to achieve its digital security objectives.