The requirements for monitoring compliance with the law would vary – from an obligation of means to an obligation of result – depending on the audience for the accounts.
In all cases, contributors would be identified, not to the public but to the platforms, in order to ensure accountability
The purpose of this paper is to explore the possibility of an original legal status, halfway between the total lack of liability on the part of the hosting provider and the full liability of the publisher, which would make it possible to regulate contributors’ freedom of expression not according to the platforms’ internal rules but in accordance with the law and under judicial oversight. This is not a matter of creating new criminal offences, let alone leaving platforms free to determine at their sole discretion what is lawful and what is not, but rather of ensuring compliance with the laws that restrict freedom of expression (insults, defamation, incitement to hatred, etc.).
The development of the internet and social media continues to raise issues concerning freedom of expression. Every week brings a new controversy. One day, platforms are criticised for allowing hate speech, conspiracy theories and fake news – or even state-sponsored destabilisation campaigns – to flourish under the cover of anonymity. The very next day, they are accused, on the contrary, of censoring the President of the United States or one contributor or another on the basis of opaque and unfair internal policies.
The unique nature of these platforms – which, by virtue of their influence and audience, are, in a sense, the ‘essential facilities’ of democracy – justifies careful consideration of how they should be regulated with regard to freedom of expression.