French Court Takes On the Privacy and Hate Speech Dilemma
In my last Perspectives blog post, I discussed how, in order to curtail online hate speech, privacy sometimes needs to take a back seat, as anonymity is often used as a privacy shield by some propagating hate. While online services can—and sometimes should—require posters to use their real names to discourage hate speech, the U.S. government cannot require the use of real names to fight legally-allowed—even if repugnant—hate speech online because of First Amendment protections for ugly free expression that anonymity promotes.
Such a limitation of government action against anonymity, for those publishing hate speech, does not exist in France, however. An ongoing French case involving Twitter and anti-Semitic tweets raises interesting issues concerning anonymity, privacy and hate speech.
On June 12, a French Court of Appeals ordered Twitter to unmask the identities of persons who anonymously tweeted anti-Semitic content in violation of French law. The order is noteworthy for several reasons:
- If the people tweeting the offending content were U.S. citizens and if their tweets originated from outside France, the right to have their privacy protected through anonymity—and their immunity from a government order to have their identities revealed—is a serious legal issue, which the French court did not consider.
- Twitter has no physical presence in France and no specialized French service. Still, the French court issued an order directly to the company, without using international judicial mechanisms to obtain evidence located outside of the country’s borders. Thus, no U.S. court had an opportunity to weigh U.S. legal interests—such as the protection of anonymity under First Amendment principles.
- Twitter took immediate steps to take down the offending content and to make it easier for users to complain about online hate speech, but the court did not consider the efficacy of those steps to remedy the issue of tweets containing illegal hate speech.
The somewhat peculiar procedural history of the case is important to an understanding of why such a seemingly precipitous order came from the French court of appeals.
The case began on January 24, 2013 when a French lower court judge ordered Twitter to provide the identities of authors of anti-Semitic tweets that violated French law. The lower court judge also ordered Twitter to install a mechanism so that users could more easily inform Twitter of illegal content that should be removed. The judge ordered that Twitter immediately perform the injunction, notwithstanding any appeal. Twitter appealed the lower court's decision to the Paris Court of Appeals.
The Union of Jewish Students of France, which is the plaintiff in the Twitter suit, asked the Court of Appeals to dismiss Twitter's appeal on the ground that Twitter had not complied with the lower court's injunction. Under the French Code of Civil Procedure, an appeal generally cannot be lodged unless the lower court injunction has been complied with. It is only where the appellant can show that compliance with the injunction would create undue hardship that the appellate court can accept the appeal on the merits.
In the appeal, Twitter argued that it had implemented the mechanism to permit users to easily identify illegal content. In its June 12, 2013 decision, the Court of Appeal disagreed, finding that the site made available by Twitter to notify illegal content was buried under several layers of clicks and that it was not easy to find.
As regards the identity of the Twitter users having published the anti-Semitic content, Twitter argued that once it gives the name of the users, the potential harm to their privacy rights will have been done and that it was critical therefore that the Court of Appeals evaluate the underlying legality of the lower court's measure before Twitter discloses the names.
The Court of Appeals disagreed, holding that the disclosure of the names would not create an unreasonable hardship for Twitter and that if it turned out on the merits that the lower court's decision was improper, the plaintiff in the action, the Union of French Jewish Students, would be liable for any damages caused to the Twitter users whose privacy was compromised.
Lastly, the Court of Appeals noted that the Union of Jewish Students of France had a legitimate need for prompt disclosure of the names in light of the short statute of limitations in France for bringing criminal actions against authors of hate speech.
Twitter argued that the request for information should go through international legal assistance treaties. However, the Court of Appeals did not address the complex questions of territoriality raised by the lower court's injunction.
The Twitter case also is noteworthy in light of the pending EU data protection regulation which seeks to expand the jurisdiction of EU regulators. The direct issuance of a court order from France to a California-based company with no local presence, and in a way that could affect the rights of U.S. citizens, is an example of expanded jurisdiction.
Note from the Editor:
Editor’s Note: Viral Hate: Containing its Spread on the Internet is a new book co-authored by the National Director of the Anti-Defamation League Abraham Foxman and Christopher Wolf.
About the Author
Christopher Wolf leads the global privacy practice at Hogan Lovells US LLP and has practiced privacy law since the earliest days of the discipline. Wolf also is the founder and chair of the Future of Privacy Forum. He was the editor and lead author of the first PLI treatise on privacy law and is a frequent author and speaker on privacy and data security issues. Wolf was the first privacy lawyer to testify before the Senate Judiciary Privacy Subcommittee and is a member of a group advising the OECD on the OECD privacy guidelines.
Wolf is a cum laude graduate of Bowdoin College and graduated magna cum laude Order of the Coif from the Washington & Lee University School of Law. He participated in the general course at the London School of Economics. Following law school, he clerked for U.S. District Judge Aubrey E. Robinson Jr. in Washington, DC. He has practiced law for 32 years. Wolf is active in charitable organizations and serves on the boards of the Anti-Defamation League, WETA Public Broadcasting, Food & Friends (a social services agency), the George Washington University Hospital and Young Concert Artists.
Winston Maxwell works in the in the Paris office of Hogan Lovells US LLP.