The following is an interview with Christopher Mesnooh*, an attorney admitted to practice in Paris and New York, and a partner at the firm of Field Fisher Waterhouse. Mr. Mesnooh, who holds his J.D. from Yale Law School, has represented many of the Silicon Valley’s most well-known companies in France and throughout the European Union over the last 20 years. He discussed with CGCS the recent law suit in France against Twitter and its implications.
Twitter and certain French plaintiffs, plus the French Courts, have been locked in a legal dispute that has just been resolved, in favor of the French plaintiffs and against Twitter. What is the background to this conflict?
In 2012, a number of particularly offensive and clearly anti-Semitic messages were posted on Twitter. The association of the Union of Jewish Students of France (the “UEJF”) filed a complaint in late 2012 with the Court of First Instance in Paris, requesting that Twitter be ordered to reveal the identities of the individuals behind these tweets. Other associations joined the action in early 2013 on the basis of anti-black, anti-Muslim and homophobic postings.
Does French law deal specifically with what Americans call “hate speech”?
Yes, and very clearly so. As a result of the atrocities of the Second World War, there is sensitivity to anti-Semitism and other forms of racism that is both profound and sincere. Recurring tensions in French society toward Jews, immigrants (particularly Muslims) and other groups reinforce the conviction held by many people that such laws are needed, more than ever. Specific provisions exist in both the Press law of 1881 and the Criminal Code to sanction behavior and words of a racist nature, imposing both fines and/or prison on those found guilty.
How did Twitter respond to being sued in France?
Twitter’s legal posture was a classic defense used by internet companies. It stated that it was an American company, subject first and foremost to the laws of the United States, and that requests coming from France to disclose information about its users needed to go through the customary legal procedures in place between France and the United States. The French plaintiffs disagreed with this position, requesting the Court to require Twitter to provide the information being requested by the plaintiffs. Twitter lost on both the initial lawsuit and the subsequent appeal which it filed in March of this year, and has since agreed to provide the identities of the persons behind the offending tweets.
Does Twitter’s decision mean that online companies must comply with all national laws of the countries in which they operate, even indirectly?
This case is an excellent example of the tensions revolving around which laws apply to companies in cyberspace. While Twitter is a US company, it has a French subsidiary, strengthening the argument of its French adversaries that it is clearly subject to French law. The fact that Twitter has users in France, who expressed their offending speech in French, and that Twitter has a specifically French-language platform, all served to strengthen the hand of those seeking to assert French law and the jurisdiction of the French courts over this company.
How does this case, and the underlying French laws against hate speech, square with American conceptions of free speech, and a free and vigorous exchange of views, over the Internet?
Frankly, this does not sit easily with the First Amendment. Freedom of speech occupies the place of a secular religion in American law and political identity. US Courts tend to grant wide latitude to free speech, even when it may be deemed offensive by significant portions of the population. France also has a robust tradition of free speech, but it is clear that other considerations, including recent history, have brought some conditions to the concept of freedom of expression.
How are these laws used in other contexts?
The French Muslim community in particular has (unsuccessfully) attempted to use these same laws to censor the publication of cartoons in 2006 and again in 2012, which placed the prophet Muhammad in a highly unfavorable light. The magazine which published the cartoons argued, in what might be considered a “First Amendment” argument, that it enjoyed the right of free speech and the right to publish freely, basing itself of course on French law. But its position was nonetheless reminiscent of US case law on free speech and one which any US lawyer would instantly recognize.
Have there been other disputes based on hate speech or privacy which involve US companies?
Absolutely. In 2000, Yahoo! found itself embroiled in a dispute with some of the same associations involved in the Twitter case, but this time relating to the sale of Nazi memorabilia, sales which were accessible to, among others, French people. The case was argued in both France and the United States and has remained a source of contention for those who have transnational legal practices.
In a similar vein, European conceptions of data protection have been codified in a European Directive, in effect since 1995, and all American companies operating websites in Europe or addressing themselves to European audiences must comply with this Directive. Any number of US companies, including most of the large social media sites, have found themselves subject to questioning, audits and other investigations, by data protection authorities throughout the EU, to determine whether they are in compliance with these highly regulated European conceptions of privacy and protection of personal data.
This Directive, currently being revised, has been the subject of intense lobbying by American companies in Brussels, who fear that they will be caught between an ever-expanding extraterritorial application of EU law on the one hand, and decisions such as Twitter (and Yahoo! before it), which will place them in legally difficult positions, as they attempt to reconcile conflicting notions of law, personal freedoms, and the ability to conduct business more or less seamlessly throughout the world.
What practical advice can be given to companies operating internationally to avoid Twitter-like situations?
Companies should have full understanding of the legal environment in which they operate. The First Amendment is the American version of guarantying free speech; other countries have different traditions and limit free speech in ways which could be problematic in the US. French laws against racist and anti-Semitic speech are one example; libel laws in the United Kingdom are another.
Second, understand that opening subsidiaries in various countries is an easy way for foreign courts to assert jurisdiction over US companies who believe that they are only required to comply with American law. But creating local language websites, selling goods and services in euros, and targeting advertising at local audiences are also jurisdictional prongs which foreign courts can use to apply, and enforce, local laws against American companies.
* Mr. Mesnooh wishes to thank Florentin Juillet for his invaluable assistance in analyzing the issues involved in the Twitter case.
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