What is fake news? It has been in the headline of many newspapers for the past few months on both sides of the Atlantic namely regarding presidential campaigns. It is defined as “false, often sensational, information disseminated under the guise of news reporting”. False news is thus false or deceptive information presented as “real news”.

The notion has raised many issues namely regarding whether it can be regulated and how it can be balanced with freedom of speech. Mathias Avocats has developed these issues in an article.

A Bill on the struggle against fake news has been drawn up in France and will soon be examined by the National Assembly (Assemblée Nationale). Let us underline that the term “Bill” used in this article refers to a proposed law (in French, proposition de loi). It is the result of a parliamentary initiative and will not lead to an impact study of said Bill. Mathias Avocats presents the key points of this new Bill.

Why was the Bill prepared on fake news?

Following the rumours and false information during his campaign, president Macron has been adamant about fighting fake news. The first lines of the Bill underline that such practices are aimed to “modify the normal course of the electoral process”. This in turn may have a significant effect on the voters. Thus, the aim of the Bill is to eradicate or limit the scope of false information during electoral campaigns and the impacts such information may have.

It must also be underlined that the Bill will only be applicable to online platforms and communication services (ex: search engines, social networks…). It does not apply to other mediums such as paper. The Bill is nonetheless very clear that the measures it aims to implement will comply with the right of freedom of speech.

In a few words, the Bill was drawn up to reinforce transparency regarding sponsored articles or information and to ensure that voters have a clear and easy access to the sources of the information.

What are the major changes?

The Bill is structured around 4 main measures which are new tools to fight against the dissemination of fake news during the electoral period.

A reinforced transparency obligation for online platforms

Online platforms which offer communication services professionally, for free or against payment, based on the classification or referencing by means of computer algorithms or on the linking of several parties for online content are subject to an obligation of transparency (article L 111-7 of the Consumer Code).  For example, they must clearly indicate on their websites their methods for referencing or whether the content is sponsored.

The Bill reinforces the above-mention obligation by requiring that the platforms give clear, loyal and transparent information on their own identity and quality or of that of the 3rd party for which it sponsors the content. They must furthermore make public the amount received in exchange for sponsoring the content. It must be underlined that contents promoting services or goods will not be subject to a reinforced transparency obligation.

Moreover, the platforms will only be subject to this obligation for a limit time period: from the publication of the decree convening electors to the end of the voting process.

 If the Bill passes, a decree will specify the detailed rules for the application of these rules.

A reinforced cooperation requirement for online communication services

Technical intermediaries, which are persons offering access to communication services, will be subject to a reinforced cooperation requirement. They will thus have to promptly remove any illicit content brought to their attention and implement an easily accessible and visible mechanism for persons to notify any fake news. They will also have to notify the competent authorities and publish the means they implement to fight fake news.

Implementation of a new judicial process

The relief judge (juge des référésl) could see his or her powers increased if the Bill passes. Indeed, the latter provides that the judge could render any measure for the purpose of making the dissemination of fake news cease (ex: injunction to take down the fake information or dereferencing of the fake news). The judge could also restrict or suspend the access to the electronical addresses of the platform sharing fake news. However, this procedure would only be available from the publication of the decree convening electors to the end of the voting process.

The Bill also states that the judge must reach a decision within 48h. However, it holds no indication as to when the 48h time limit is to begin. The expediency of the procedure ensures the fake news will not spread across the Internet and limits access to such information.

 New powers granted to the High Audio-Visual Board (Conseil supérieur de l’audovisuel, CSA)

The CSA guarantees the freedom of audio-visual communications in France. It must namely protect consumers, ensure that the principle of human dignity is respected and supervise the organisation of electoral campaigns on the radio and on television.

Under the Bill, the CSA would have the right to refuse to sign a convention with a foreign country of the latter’s activities could “seriously upset the life of the nation namely by the dissemination of fake news”. It could also suspend certain services.

What about the European Union?

France is not the only one taking action. In January 2018, the European Commission set up a high-level group of experts to advise on policy initiatives to counter fake news and disinformation spread online. It rendered a report on March 12th, 2018.

The report recommends a multi-dimensional approach based on five pillars namely including enhanced transparency, continued research on the impact of disinformation and promoting media and information literacy to counter disinformation.

End of April 2018, the European Commission published a press release which includes a series of measures to be taken to tackled disinformation online. One of the key measures of this press release is the development of a Code of Practice namely aiming at ensuring transparency about sponsored content and introducing measures to identify and close fake accounts and to tackle the issue of automatic bots. The Code is to be developed by online platforms, with the help of the European Commission, by July 2018.

Mathias Avocats will keep you informed of any further developments.