Banning cyberbullies: asked about school bullying by HugoDécrypte, on Hugo Travers’ YouTube channel, Emmanuel Macron again mentioned, Monday, September 4, the additional penalty of banishment which would target perpetrators of online harassment. ” We are in the process of passing a law – which will be voted on this fall – which will make it possible, if I may say so, to keep cyberstalkers away online by banning them from networks for six months or, if they reproduce (online harassment), for twelve months, hammered the head of state. ” The law will put a procedure in place, permitted by European directives, in particular the DSA which is transcribed into French law”, he added. Who could decide on such a measure? “It is a responsibility of the networks”replied the President of the Republic.
With these words, Emmanuel Macron brought to the fore social media ban issue, a measure provided for by the bill aimed at securing digital technology currently being adopted by the National Assembly. Presented last May to the Council of Ministers, the bill was adopted at first reading by the Senate on 5 July. But it still has to go through the National Assembly – it will be on September 19. This text could therefore be modified before becoming applicable law.
An additional penalty that would only apply, at best, to 3% of cases of online violence
Banning cyberbullies, what is it, concretely? According to the latest version of the bill, those convicted of online hate, cyberstalking, child pornography or pimping may receive an additional penalty of suspension from social networks for six months (or even a year in the event of a recurrence). If a social network does not block the suspended account, it incurs a fine of 75,000 euros.
It would therefore be a question of setting up a penalty complementary – which means thatit would apply to cyberstalkers judged by a court and sentenced for acts of online hate and harassment, child pornography, or pimping. These would not represent, in practice, very few online harassers. According to a November 2022 survey by Ipsos of 216 victims of cyberviolence and commissioned by Féministes contre le cyberharassement, only 3% of cases of ” online violence are the subject of legal proceedings, reported last May to 01net Laure Salmona, co-founder of this association.
And even in the event of prosecution, justice is very slow, the files taking several years to arrive on the desk of a judge, while the harassment continues – as the case of the singer Hoshi shows. This perhaps explains why Emmanuel Macron, during his interview with HugoDécrypte, mentioned the possibility that competent authorities – other than a magistrate – decide to suspend an account, without the approval of a judge. It would therefore be a question of banishment outside the judicial circuit, on notification of a trusted signaller, or decided by an administrative authority, a measure which is not not provided for in the current version of the bill. ” We understand the purpose, but that does not allow us to sit on the fundamentals of the rule of law “, tackle Maître Alexandre Archambault, lawyer specializing in digital, questioned this Tuesday, September 5 by 01net.
This possibility does not really seem to be on the agenda since this Tuesday, Jean-Noël Barrot, the Minister Delegate in charge of Digital, refrained from mentioning this new measure (a ban decided outside of a judge), while he was at the microphone of South Radio. The latter stuck to the additional banishment sentence decided by a magistrate, as provided for by the bill.
A measure in accordance with European law?
But this measure of temporary suspension of social networks, even if it is pronounced by a judge, will have to overcome a major obstacle: European law. Because if this bill becomes a French law, applicable in France, it would amount to forcing social networks to respect a new obligation: to ban the perpetrators of cyberbullying convicted by justice, and to ensure that they do not re-register not under another nickname for six months or a year.
With our colleagues from Sud Radio this Tuesday, September 5, Jean-Noël Barrot, the Minister Delegate in charge of Digital, indeed explained that “ this will be the responsibility of the platforms of take all necessary means to ensure that the convicted person cannot re-register on the social network in question ».
The Minister also adds that since the entry into force of the DSA ” the platforms will now have to collaborate more actively, because the European rules which entered into force on August 25th impose on them a new responsibility, much greater than before. (…) We are going to impose a new form of responsibility on them vis-à-vis what passes (on their social networks) “.
The French law more severe than the DSA?
It is true that the Digital Services Act (DSA), the European regulation on digital services which entered into force on August 25, imposes new rules on tech giants, including the main social networks such as TikTok, Snapchat, Instagram and Facebook. In particular, they will have to demonstrate greater moderation and transparency. But does this European regulation also require them to ban cyberstalkers? No. And that’s a problem, since that would mean – if this project actually becomes law – that French law would be stricter than the European standard.
However, the European Commission has already stated that the Member States should not, on a subject already dealt with by Brussels (a reserved area), enact stricter rules.
This rule was precisely recalled, very recently, by Thierry Breton, the European Commissioner for the European Market, in a written response to a question from a MEP (Geoffroy Didier) on August 2nd. This MEP LR questioned the compliance of the bill with European law. The French text adds provisions that are not in the DSA and DMA regulations “, including ” higher national standards “, underlined the politician. Response from Thierry Breton: “ Member States should refrain from adopting national legislation that would duplicate these regulations or which would create stricter or more detailed provisions in the relevant regulatory areas “. The European Commissioner for the Internal Market is particularly scathing, he does not hesitate to write that ” the Commission is ready to implement coercive means to prevent any national initiative “.
The challenge: not to fragment the application of the DSA
For Maître Alexandre Archambault, “ if the Member States want to add new additional obligations to those provided for by the DSA, they can request it, but there must be a consensus at European level. They must not be included in national laws which will amount to fragment the application of the DSA “. Because the stakes are high: If France does it, what will prevent Victor Orban or Poland tomorrow from asking a host to remove LGBT content? »
Another problem: since the entry into force of the DSA, national authorities such as Arcom are no longer competent to supervise or order measures against very large social networks: this is now the role (and the preserve ) of the European Commission.
Finally, as we explained to you last May, the measure is in practice very complex to implement for these companies. Social networks do not verify the identity of their users, and it would be enough for an online harasser to recreate an account under another pseudonym to circumvent the ban. However, if the platform does not prevent this account creation, it risks a fine of 75,000 euros.
Awareness modules, big plan… New measures announced
For associations for the defense of victims of cyberbullying, temporary banishment is not, in any case, the alpha and the omega: on the contrary, it would be necessary to invest in prevention, to carry out a major national awareness campaign or even to invest in Justice. Asked about the preventive component, Jean-Noël Barrot announced new measures, recalling that “ even behind a nickname, you can be found and you can be heavily punished “. First, all 6ᵉ students will follow an awareness module on cyberbullying as of this start of the school year.
Read also: Social networks cut in the event of a call for revolt? After the open letter from NGOs, Thierry Breton publishes a “clarification”
Then, an announcement from the Prime Minister, about a major plan in this area, should fall in the coming weeks. The Ministry of Education, for its part, has just designated as “great cause of the 2023-2024 school year” the fight against bullying. In the event of cyberbullying, minors should tell an adult about it, and report problematic messages to each platform “, underlined the Minister in charge of Digital, with our colleagues from Sud Radio. They can contact the number 30 18. The association Féministes contre le cyberharassement has also set up a practical guide for all victims of cyberharassment, available on this site.
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Interview of Emmanuel Macron by HugoDécrypte on September 4, 2023