IAPP-GDPR Web Banners-300x250-FINAL
beLikeStacey-01
Certification_Ad_300x250final-01
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:

  1. 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.
  2. 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.
  3. 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.

photo credit: Funky64 (www.lucarossato.com) via photopin cc

Written By

Christopher Wolf

Written By

Winston Maxwell

0 Comments

If you want to comment on this post, you need to login.

Related

Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Spots Going Fast

With the top minds in the field leading this exceptional program, it's no wonder it's filling quickly. Register now to secure your spot.

Be Part of Something Big: Join the Summit

Registration is open for the Global Privacy Summit 2016. Discounted early bird rates available for a short time, register today!

Data Protection Intensive Returns to London

Registration is now open for the IAPP Europe Data Protection Intensive in London. Check out the program!

P.S.R. Call for Speakers Open!

P.S.R. is THE privacy + cloud security event of the year, and you can take a leading role. Propose a session for this year's program.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»