Fake news was named Collins Dictionary’s official Word of the Year for 2017. It is a controversial term which has given rise to numerous issues.

The dictionary defines fake news as “false, often sensational, information disseminated under the guise of news reporting”. Thus, fake news is presented as “real news” despite the fact that the information is deceptive or false or simply presented as a joke. The stories are often spread on the internet and namely social media.

It is important to underline that fake news is purposefully presented as such. On the other hand, real news outlets, such as major newspapers or televisions networks, are subject to a code of ethics which namely includes relying on reputable sources and fact checking. They may not purposefully share information they know to be false.

Regardless of the ethical issues fake news may raise, the main concern is how to restrict fake news and the protection of individuals. This leads to the question: can fake news be regulated? If so, how? Can fake news be sanctioned?

Mathias Avocats dresses an overview of the situation in both the United-States and France.

What is the legal framework in the US?

The 1st Amendment of the United-States Constitution protects freedom of speech and of the press. It protects the right to freely exchange ideas and point of views regardless of whether they are controversial or false. Censorship as well as prior restraint, which is a government action prohibiting speech or other expression before it can take place, are generally unconstitutional. This implies that fake news cannot be banned.

Nonetheless, individuals which are the subject of fake news have several legal recourses. They may namely bring an action for defamation or other speech-related torts (ex: false light invasion of privacy), intentional infliction of emotional distress or tortious interference.

In a few words, no legal action may be taken before the false news article is published and remedies may only be sought after the publication if the latter caused the person harm.

What is the situation in France?

In France, freedom of speech is protected by Article 11 of the Declaration of the Rights of Man and of the Citizen. It is subject to certain limitations such as defamation or offensive speech.

However, the legal framework is not identical to the one in the United-States. Indeed, Section 27 of Freedom of the Press Act of the 29th of July 1881 sanctions “the publication dissemination or reproduction , by any means whatsoever, of false news, fabricated, falsified or deceptively attributed to third parties when, in bad faith, it has disturbed the public peace, or is likely to disturb it”. It is punishable by a fine of €45.000.

This section limits fake news published by French media. Nonetheless, its scope is not broad enough to encompass all media outlets and is limited to specific malicious intent publications disturbing or likely to disturb public peace.

In order to better address the issue, the French President, M. Macron, announced that a Bill will be introduced shortly to fight against the dissemination of false information on the Internet during an election period. He namely states that platforms will be subject to a more stringent transparency requirement on all sponsored content. Mathias Avocats will keep you informed of the next steps taken.

It must be underlined that initiatives have also been taken by the European Union (EU). The European Commission launched a public consultation on fake news and online disinformation. It will end on February 23rd, 2018. The Commission further set up a Group comprised of several experts to work on the issues of fake news and on the development of a strategy. The latter should be made public in Spring 2018.

Can steps be taken to avoid fake news?

If the law can’t protect people from fake news, there are several simple steps which can be taken to determine if the information is true or false. For example, when surfing the web, one should look at the URL of the page and see if there is any indication of satirical content or discrepancies with real media outlets. Furthermore, one must be vigilant concerning citations of sources of information.

There are also several websites which research rumours and false stories and identify them as such (ex: Snopes.com, FactCheck.org, PolitiFact.com…). One can also fact check the story oneself. They key element is to remain vigilant.

Mathias Avocats will keep you informed of any further development.