After the unpalatable trajectory of the "Avia law", and the failure of the GAFA tax at the European level, France is once again taking the risk of making a fool of itself in digital matters. Last week, French ministers made the bombastic announcement that a new law will allow the communications regulator Arcom to block Twitter and other international social networks. In reality, it cannot, and officials from the European Commission confirm that French authorities will not be able to block platforms that are not headquartered in France, including Twitter. In any event, this blocking power must be exercised not by an administrative authority, but by a judge.
After last week's shambolic statements by the Minister of Digital Affairs Jean-Noël Barrot about France enabling the Arcom to block Twitter and other large platforms, we investigated. According to him, the future digital law could allow the French authorities to block Twitter, an international platform whose European headquarters are situated in Dublin, Ireland. But such measures would be contrary to the Digital Services Act, the new European platforms regulation. "As the French authorities have not yet notified the draft to the Commission, we aren’t in a position to comment on the substance", said an official from the European commission who does not wish to be named at this stage. France can indeed notify its measures at any time, as long as they are still at the draft stage. This official of the Commission nevertheless took the trouble of explaining several points regarding the powers of national authorities under the DSA.
Here is the gist of it: in case of violation of their obligations, the Digital Services Act allows national authorities to block online platforms. But on the one hand, this power is restricted to platforms whose registered office is on their own territory; and on the other hand, this competence must be exercised by the judiciary, not by regulators. Moreover, for very large platforms, including Twitter, the powers of investigation and sanction belong almost exclusively to the European Commission.
"Not just to Twitter"
The French government, as we saw last week, has introduced its bill adapting French law to the DSA and the DMA, as well as to other provisions recently adopted by European institutions. In the first articles of the bill, the government adds provisions for the protection of minors against online pornography, which are not included in the DSA. In essence, they establish an obligation for platforms either to remove pornographic content, or to disable its access to minors. The government plans to allow Arcom to block all platforms and social networks which do not comply with these obligations. After the bill's announcement, the Minister of Digital Affairs added that this power would be applicable "not only (to) Twitter: it will concern any platform that will not act to protect our children from exposure to pornographic content."
This is simply contrary to the DSA, for two reasons. First, Twitter is on the DSA's list of very large platforms, and as such, it's up to the Commission, in possible coordination with Twitter's home country in Europe, Ireland, to take action. "With regard to violations of DSA obligations more broadly by platforms designated as Very Large Online Platforms (VLOP) or Very Large Online Search Engines (VLOSEs), such violations are to be investigated and enforced by the Commission, either on an exclusive basis (as regards the VLOPs-specific obligations) or on a position of primacy (as regards the other obligations applicable to all platforms, which are to be enforced by the competent authorities in the Country of origin of the platform to the extent that the Commission does not decide to take over)" the Commission representative we mentioned earlier explained.
Zero chance of blocking Twitter
Under European law, the possibility for France to block Twitter - a platform based in Dublin via the "Twitter International Unlimited Company" - is therefore totally non-existent. France will be able - perhaps - to apply such measures to platforms whose European headquarters are located in France. That is to say, France will not be able to block any major international platform. Indeed, none of the very large platforms referenced a few days ago by the European Commission under the DSA - such as Twitter, Snapchat, Facebook, or Instagram - has its European headquarters in France.
Blocking by the judge
And then, even for platforms based in France, this blocking power cannot be applied, under the DSA, by an administrative authority, but only by the judge, and as a very last resort. Or, in the words of the official representative of the European Commission: "as a last resort measure, in specific circumstances where the infringement is not remedied in spite of these enforcement powers and it is producing serious harm threatening life or safety of persons, the DSCs of the country of origin, on its own motion or upon request of the Commission (in case of infringements ascertained by the Commission), may ask the national court to issue an order blocking the provision of the service altogether."
Good cop / Bad cop
The French ministry of economy, which prepared the French bill with the participation, among others, of the Ministry of Culture, are perfectly aware of this. There is no doubt that if the bill was notified to the European Commission in its current wording, the latter would be fully justified in denouncing its content... As it had already done for the Avia Law - a law against heinous content on the Internet - of which the French Constitutional Council annulled 95% of the provisions. So why these measures, and why these thundering ministerial declarations about Twitter? One can imagine that the government could, once again, be caught in the trap of wanting to communicate at all costs. In the current political climate, the ministry of economy is trying to distinguish itself from the falling graces befalling the host of the Elysée Palace. When a minister explains that France will have the power to totally close Twitter, a world-renowned platform, the interview or the quote in question will be a guaranteed success in the media, some of which are keen on critiquing social media as the mother of all evil. We can also notice a conjunction between these declarations of Jean-Noël Barrot and the visit of Elon Musk today at the "Choose France" congress in Versailles. Perhaps Bercy has imagined a scenario in which Bruno Le Maire - who was full of praise in his interviews this morning for the founder of SpaceX and Tesla and the new owner of Twitter - was the "good cop", while the role of "bad cop" would have been assigned to Jean-Noël Barrot.
In any case, these proposals and declarations will be long-lasting, and France will not block Twitter or any other major platform. The bill will soon be discussed in the National Assembly, where it should pass quite easily. France can choose to notify its future law to the Commission whenever it wants, and will probably wait until time passes to do so. The Commission representative explains that "once a draft is notified, a standstill period of three months is triggered under the provisions of the Single Market Transparency Directive, during which the Commission and other Member States have the opportunity to react to the notified draft." If it is not changed by then, it is already safe to say that it will be shaken up.