Background – elections and “fake news”
In recent years elections and referendums held throughout the world have been blighted by “fake news”, resulting in a serious attack on democratic systems. Emmanuel Macron’s desire to fight against “fake news” during election campaigns culminated in the adoption of two bills on the 20 November 2018 to fight against the manipulation of information and to place new obligations on online platforms:
- Proposition de loi organique relative à la lutte contre la manipulation de l’information, No. 772 – Proposed Organic Law Against Manipulation of Information, No. 772; and
- Proposition de loi relative à la lutte contre la manipulation de l’information, No. 799 – Proposed Bill on the Fight Against the Manipulation of Information, No. 799).
The two bills listed above were particularly controversial and did not have a smooth path to adoption. The bills were heavily criticised by the Senate during their examination, and rejected in their entirety at first and second reading as discussed in further detail below.
The bills cover four main points:
- the introduction of a new interlocutory proceedings – such proceedings would enable judges to take proportionate and necessary measures against internet service providers and hosts to stop the spread of inaccurate or misleading allegations or imputations of a fact;
- the granting of new powers to the Conseil Supérieur de l’Audiovisuel (“CSA”), to be able to prevent, suspend or terminate the broadcasting of television services controlled by a foreign state in the event of an infringement of the French state’s fundamental interests;
- the introduction of an obligation upon internet hosts and service providers to allow users to bring to their attention information they believe to be fake and to alert public authorities; and
- an obligation to ensure transparency in the relationship between online platform operators and the advertisers for whom they act.
The Senate’s strong opposition to the bills
At first reading in the Senate on 26 July 2018, the Senators totally rejected these bills, adopting a motion to oppose a preliminary question, on the grounds of the risks raised in the reports of the Committee on Culture, Education and Communication and the Committee on Laws (the “Committees”).
The text rejected in its entirety and therefore not amended by the senators, was referred to the French National Assembly and then forwarded again to the High Chamber of Parliament for a second reading.
During this second reading before the Senate, and after having noted the absence of substantial amendments to the bills rejected at first reading, the Committees invited the Senators to reject all the articles of the bills and to resubmit to the Senate a motion to ask a preliminary question. On 17 October 2018 Opinion n°53 and Senate report n°54 formulated this motion on the grounds of “the weaknesses inherent in texts drafted in a hurry, without prior assessment of the real gaps or failures of our legislation and current regulations” but also “the dangers of infringements on freedom of expression“, in particular with regard to the powers conferred on the CSA. This motion was adopted by the senators on 6 November, by 289 votes in favour and 31 votes against.
In rejecting the bills again, the Senate did not deny the difficulties posed by the spread of fake information in order to influence general elections, but considered that the bills on fake information were not the most appropriate response since:
- there are current provisions and interlocutory proceedings in place to prevent the dissemination of false news;
- the provisions relating to the CSA (Articles 4 to 8), and in particular the rejection of the convention or the suspension of television services controlled by a foreign State in the event of damage to the fundamental interests of the French state, have a better place in the context of audiovisual reform; and
- the regulation of platforms must be carried out at European level and not at national level, in order to create a new status for platforms and search engines.
Referral of the Bills to the Constitutional Council
On 21 November 2018 (the day after the bills were adopted by the Parliament), the Senators referred the text, which had not yet been enacted by the President, to the Constitutional Court.
The criticisms made by more than sixty senators under the referral of 21 November 2018 concern the violation of freedom of expression and communication and the failure to respect the constitutional principle of the legality of criminal offences and penalties.
The Senators highlighted in their referral that the proposed introduction of a new interlocutory proceedings contained in the bills, was a violation of freedom of expression and communication which would be neither necessary, nor appropriate nor proportionate since:
- The objectives pursued by this text are already satisfied by legal provisions in force, providing for civil actions but also criminal penalties.
- This procedure does not have sufficient safeguards; the “proportionate and necessary measures to stop such dissemination” are not sufficiently defined.
- Questions remain as to the ability of the judge hearing the application for interim measures to establish a priori in 48 hours the alteration of a vote that has not yet taken place and the sincerity of the vote in the event of an appeal against the decision rendered by the judge of evidence.
- This procedure “would make it possible to prevent the dissemination of allegations that would only be misleading but not inaccurate when they can nevertheless contribute to the democratic debate”.
- Finally, since the criterion of bad faith was not retained in the definition of “false information”, satirical, parodic content likely to alter the sincerity of a vote could fall within the scope of the text.
According to the Senators, the text also disregarded the constitutional principle that offences and penalties must be defined by law, since the imprecision of the concepts retained under the articles establishing new criminal offences in the event of non-compliance by operators of online platforms with their transparency obligations “creates great uncertainty as to the elements constituting these offences“.
Borrowing the European Court of Human Rights’ famous formula from Handyside v United Kingdom (7 December 1976), the Council has repeatedly affirmed that “freedom of expression and communication is all the more precious as its exercise is a condition of democracy and one of the guarantees of respect for other rights and freedoms. It follows that infringements of the exercise of this freedom must be necessary, appropriate and proportionate to the objective pursued”.
However, on 20 December 2018, the Constitutional Counsel considered (in Decisions n° 2018-773 & 2018-774), that the bills adopted by the Parliament complied with the French constitutional principles, provided that the inaccuracy or misleading nature of the allegations or imputations of fact are obvious. For example; because the obligation imposed on online platform operators is limited to the duration of the election campaign and, with regard to the scope of the interlocutory proceedings, the allegations do not include opinions, parodies, partial inaccuracies or simple exaggerations.
The application of this Law and its effects will therefore be noticeable during the next elections.
Pauline Pilain & Djazia Tiourtite
 A “more operational” scope has been given to the definition of “fake information“, a legal remedy has been created and the cooperation obligations now concern operators of online platforms and no longer hosts and ISPs.