Fake News: President Emmanuel Macron, the victim of online disinformation campaigns during the last presidential campaign, has rushed a bill proposed by his party, La République En Marche (LREM), onto the legislative agenda. This bill aims to combat the spread of false information in the media and online during election periods by lobbying groups.
Prepared by the Minister of Culture, Françoise Nyssen, since the start of the 2017 academic year, the government project is intended to become a bill sponsored by the LREM group in the National Assembly. This would allow the government to bypass the requirements for consulting the Council of State and conducting an impact assessment to evaluate the economic effects of the future obligations placed on online platforms.
Fake News: “Law on reliability and trust in information”
Provisionally titled the “Law on Reliability and Trust in Information,” the proposed law limits its scope to controlling interference by foreign powers in French electoral debates.
The text explicitly aims to protect presidential, senatorial, and European parliamentary elections from fake news. Article 5, amending the 1986 law, also addresses the election of members of parliament and referendums.
In accordance with the provisions of Article 6 of the Constitution concerning presidential elections, the government has also submitted a supplementary organic law amending Articles 3 and 4 of Law 62-1292 of November 6, 1962, relating to the election of the President of the Republic by universal suffrage.
The proposed solutions do not include amending the law of July 29, 1881, or clarifying the very concept of “fake news” as defined in Article 27 of the law. However, the government appears to be excluding content aimed at promoting goods or services, focusing instead on news-related information, with the exception of parody or satire.
Fake News: Increased control of media and the internet
The legislation, submitted by the government on March 7, primarily aims to strengthen control over content disseminated online and on audiovisual media. The law supplements Article 6 of the LCEN (Law for Confidence in the Digital Economy) by reinforcing the obligations of internet service providers and content hosts. These entities will be required to implement an accessible and visible system for reporting misinformation.
As with other forms of illegal content, such as the glorification of crimes against humanity, incitement to discrimination, hatred, or racial violence, technical intermediaries will be required to promptly inform the authorities of any content reported by an internet user – the principle of “notice and take down.”
An interim injunction procedure before the High Court is thus put in place to stop the dissemination by all means – delisting, removal of content and blocking of users’ IP addresses or even inaccessibility to the site itself with a deadline of 48 hours to decide.
Media Law and Fake News: Content Control
Regarding broadcasting, the CSA (French Broadcasting Authority) has expanded its powers, enabling it to prevent, suspend, or terminate the broadcasting of television services controlled or influenced by a foreign state that harm the nation’s interests or participate in an effort to destabilize its institutions, or that it deems necessary to safeguard public order.
The CSA may refuse to enter into an agreement with a service that does not use terrestrial frequencies and may urgently suspend the broadcasting of a service through an administrative injunction.
These procedures are modeled on the system of fairness imposed on platform operators with respect to consumers of sponsored content beyond a certain audience threshold.
The proposed law therefore includes fair information on the sponsor of the promotion of information content, the amount of remuneration and the origin of funds for operations carried out from the date of publication of the decree convening the voters for online platform operators exceeding a threshold of number of connections.
Fake news: legitimate criticisms of the legislation
The appropriateness of this legislation is questionable, given that existing procedures are deemed sufficient by some professionals and the urgent need to define what constitutes misinformation.
Beyond its nationally limited scope, such a legislative framework worries the courts, which would be required, within a particularly short timeframe and in an electoral context, to define what constitutes official information for the public’s accurate disclosure.
Fearing an “illiberal democracy,” several digital stakeholders analyze the law as a further restriction of civil liberties and a tool of authoritarian power.
The current text effectively calls into question the principle of net neutrality while allowing infringements on the freedom of trade and industry with respect to online content platforms, as well as on the freedom of commercial advertisers.
In this context, other avenues for alternative legislation are being considered. In addition to promoting media literacy, the creation of an independent body, similar to those in other European countries, responsible for ethics and mediation, could be explored to address public demands for fact-checking.
