Is Regulating Hate and Infox a legal obligation imposed to the Digital Enterprises or the expression of their free will to contribute to Democracy?

Internet has brought a new world. Wonderful as much as awful. More than before we can access to knowledge and meet people. More than before we receive misinformation and hate speeches. Easy to send and diffuse, so difficult to stop. Knowledge, infox, meeting and hate are everywhere in the digital space. Network, circulation, propagation, contamination, virus, disaster: these phenomenons are linked. Step by step, we go from wonderful to awful.

However, we want to keep the best and destroy the worst.

How to do so ? (if truth and civil peace remain our concern)

It is very difficult to fight against infox and hate, more than before, because public authorities don't know who does and diffuse them.

The least worst solution is to obtain from digital enterprises that they find and apply technical mechanisms to stop infox and hate they are structurally contributing to spread.

They do so. A lot. For instance by the moderation work or through educational programs. An academic article, A digital media literacy intervention increases discernment between mainstream and false news in the United States and India, shows the effect of warning and education made by Facebook in favor of Internet users to obtain a civil behavior in digital space.

This is also why Facebook will educate U.S. citizens before the next November elections. And does its best efforts to moderate contents, exclude not only infox but also hate speeches, and blackface parodies, etc.

On what basis? What is the adequate legal qualification of these programs?

Generally, digital firms explain they do so through Corporate Social Responsibility (CRS): they know the necessity to preserve the truth, to organize the traceability of speeches, to educate users who are also citizens, to be an active part of Democracy.

One can also explain this decision by calculation: need of good reputation or fear of boycott, especially by the other firms. To "encourage" Facebook to fight hate, Microsoft, Samsung have stopped their advertising campaign in this social media until it does it efficiently.

But if it is only an action based on a voluntary decision, the firm cannot be forced to succeed, not even to act. This is why Mark Zuckerberg could assure the enterprise's behavior doesn't have to change.

Nevertheless, different associations say it is the "responsibility" of Facebook (Facebook is only the stronger example) to fight. But what sort of "responsibility"? Based on moral and ethical duties, as digital enterprises suggest, or because a legal obligation exists?

Looking toward Europe's framework, it is clearer. Firstly, it seems impossible to engage the digital enterprises liability for the publication and diffusion of false information or hate speeches, because they obtained a sort of immunity by the European Directive which denies their qualification as publisher. Even if accountability (Ex Ante) is not the same notion than liability (Ex Post), digital firms say if they cannot be liable, they could be accountable...

Accountability is a legal notion of Regulatory and Compliance Law, linked to situation of power Ex Ante than to violation of rules noted Ex Post.

More generally if Law continues to deny the power of digital crucial operator, it will be impossible to regulate Internet (ambition needed), to distinguish what is very good (information and connexion) from what is very bad (infox and hate). We would be in front of an aporie: to undergo the destruction of civilisation by Internet because we want to keep spread of knowledge and connexion ; or to decide to fight them, abandoning all normative and punishing power to these private american enterprises... What a pity...

The solution to resolve this aporie, so often underlined to force us to a choice, is to qualify fighting infox and hate as a legal obligation (not only a moral duty, expressed by corporate social responsibility). But not only. Also as an obligation of Compliance Law.

Technically fighting infox and hate speech, which is a "monumental goal", must be internalized in those which are in position to do so: digital enterprises. This is the definition of Compliance Law (see a similar analysis about the fighting against Covid-19).

European legal systems are evolving in this direction.

The future European legislation, the Digital Services Act, part of the European Digital Strategy, will put on digital entreprises some Ex Ante duties to stop infox and hate speeches.

This is not against these powerful enterprises: for instance, currently, the Code of Conduct on countering illegal hate speech online, elaborated by the European Commission with Facebook, Google, Twitter and Youtube, aims to fight efficiently against hate speeches.

But, because they are legal dispositions, enterprises are not free to not act. Moreover, their actions are supervised by public authorities.

In France, the Conseil supérieur de l'audiovisuel (CSA) has published its first report on "infox", based on the French law of 22 December 2018 relative à la lutte contre la manipulation de l'information ("on fighting against information manipulation"). This law puts on platform operators a legal obligation to "cooperate" to fight against the diffusion of false information, and gives to this regulatory and supervisory public body the role to establish an annual report about their diligences.

In a dialogue legally organized, based on a "recommandation" formulated by the Conseil supérieur de l'audiovisuel in 2019, digital enterprises have responded to a survey and given plenty of information. For instance, the response of LinkedIn insists on the fact that it's a professional network, structurally unfavorable to hate speech. All are obliged to do so.

By this supervisory power, the CSA can be informed and regulate by diffusion of these informations to everyone. As the Financial Markets Authorities do for compliance duties accomplishments by banks, for example.

This sort of legal mandatory cooperation between crucial firms and regulators is a characteristic of Compliance Law.

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One reference : Frison-Roche, M.-A., Having a good behavior in the digital space, 2019.