December 4, 2018

Only a week after Parliament approved it, a new French anti-misinformation law is already receiving pushback.

More than 50 senators from the French Republican Party (LR) and the Centrist Union group appealed to the Constitutional court over the law, which is among the first of its kind in Europe.

The lawmakers of the opposition parties argued that the law falls short of the principle of proportional justice, 20minutes reported. More specifically, it appears that senators contest the powers granted to judges to shut down news deemed to be fake within 48 hours from notification. Likewise, they argue that the law conflicts with already existing penal codes as it foresees crimes related to the lack of transparency of online platforms.

The appeal is only the latest twist in the French legislative tale that started back in January 2018, when President Emmanuel Macron decided to take a stand against fake news. Last week’s final approval came after the Senate rejected the provision twice, and a special conciliatory committee failed to orchestrate an agreement between the Assembly and the Senate earlier this year. The Constitutional Court is now expected to rule over the matter within a month.

But the question remains: What’s all the fuss about?

What the law says

The French law is the first legislative act that provides a definition of “fake news”: “Inexact allegations or imputations, or news that falsely report facts, with the aim of changing the sincerity of a vote.”

Lexicology aside, the whole law is designed to enact strict rules on the media during electoral campaigns and, more specifically, in the three months preceding any vote.

If in this period false allegations are spread online “massively, deliberately, artificially or automatically,” a judge is authorized to act “proportionally” but “with any means” to halt their dissemination. For the judge to act, a specific request must be filed by political groups, public authorities or individuals. The judge “acts within a delay of 48 hours from the notification.” In case of an appeal, a court must rule within the same time period.

A second important piece of the law concerns the “duty of cooperation” of online platforms in the fight against misinformation. Each platform has to establish a “tool for users to flag disinformation.” Moreover, they are also called to enact measures spurring:

  • Transparency about how their algorithms function
  • The “promotion of content” from mainstream press agencies
  • The removal of fake accounts that “propagate massive misinformation”
  • The disclosure of key information relative to sponsored content and the “identity of individuals or organizations that promoted them”
  • Media literacy initiatives

For algorithmic transparency, platforms have to publish “aggregated statistical information about their functioning.” They must provide information about “how many direct accesses” a given piece of content benefits thanks to “their algorithm or reference mechanisms,” compared to regular traffic. All this information has to be publicly accessible, according to the law.

Lastly, legislators granted the Higher Audiovisual Council (CSA), the broadcasting regulator, new administrative and executive powers.

The CSA will be charged with ensuring that platforms abide by the law. It will “publish a regular report” regarding the effectiveness of measures enacted by platforms. At the same time, the latter are expected to designate staff members to facilitate dialogue with public authorities.

Additionally, the CSA can now “unilaterally” revoke the broadcast rights of TV and radio outlets operating on French territory who are found to work “under the control or influence of a foreign state” and “disseminate misinformation.” Crucially, to justify its actions, the CSA can point to content produced by a “subsidiary” of a broadcaster and disseminated through media other than TV. Satellite operators must execute the decisions of the CSA. Jean Luc Mélènchon, leader of the left-wing La France Insoumise Party, called the measure “a circumstantial law made in order to ban Russia Today and Sputnik.”

The public debate

Besides launching an appeal, opposition parties voiced strong criticism of the government’s approach in Parliament.

In his intervention preceding the approval of the law, Mélènchon said co-regulating with platforms would prove ineffective. Furthermore, he is opposed to giving more power to the CSA.

“The concentration of property in the media sector, the low working conditions of journalists, and the conflicts of interests within the sector are the three main diseases of contemporary journalism,” Mélènchon said. “The law appears to deal with the symptoms, not the causes, of the diseases of the media sector.”

Earlier this year, Marine Le Pen, leader of the far-right wing party Rassemblement National, criticized the law in an opinion piece published in Causeurs. She blasted Macron’s attempts as “liberticidal.”

RELATED ARTICLE: A guide to anti-misinformation actions around the world

However, according to the latest Eurobarometer report, 74 percent of French citizens said they worried about “disinformation and misinformation on the internet” ahead of elections at the local, national or European level. A smaller proportion (51 percent) are worried about the “restriction and censorship of political debates on social networks.”

In a debate hosted by Euronews, journalists and politicians from outside France commented on the law as well.

James Crisp, a Brussels correspondent of United Kingdom-based newspaper The Telegraph, said he was skeptical of the French approach. Instead of the law, he argued that maybe it’s time to step back and “realize that you cannot really trust anything going around on the Internet.”

Likewise, Laura Shields, director of the marketing agency Red Thread Communications, said, “Although the quality of information is the lifeblood of liberal democracies, it cannot be left in the hands of politicians.”

Conservative Finnish MEP Sirpa Pietikäinen praised the efforts of French legislators.

“I think there is a point for Governments to step in … we need to act,” she said. “It is good to put editorial responsibilities on platforms.”

Will Europe follow France?

During the parliamentary debate preceding the approval of the law, Franck Riester, the French minister of culture, argued that the bill aims to inspire a European approach and that, “to be efficient, pan-European regulation is needed.” Although the European Commission established a Code of Practice on online disinformation earlier this year, Riester argued that not enough progress was made at the European level. (Disclosure: IFCN Director Alexios Mantzarlis was part of a “sounding board” asked to weigh in on the code of practice by the E.C.)

In a similar vein, speaking after the Minister, Bruno Studer, the rapporteur of the Cultural and Educational Affairs Committee of the Parliament, qualified the EU measures as “laudable,” yet not “far-reaching.” He explained that they do not contain concrete “obligations for online platforms.” Thus, “the French law is probably among the first cases representing a coherent legislative act,” he said.

RELATED ARTICLE: Politicians in Europe are still arguing about what fake news is and what to do about it

In June, Jakub Janda, director of the Prague-based European Values think tank, also criticized the EC’s actions against misinformation in a commentary published on Euractiv. With reference to a High-level Expert Group report on how to tackle misinformation that was published by the EC in March, he claimed that European institutions were intentionally not adopting concrete actions against Russian disinformation.

Janda’s team at the think tank is one of the most active contributors to EUvsDisinfo, a site created by the EU to identify and debunk misinformation. It has been the subject of lawsuits from media outlets who claim the project erroneously labeled them as misinformers.

By placing a direct link between the spread of misinformation and “media under the influence of foreign states,” as well as imposing punitive measures through the courts, France now appears to be moving away from the EU.

Studer said that the upcoming European elections “will be the next theater of manipulation,” as well as “an occasion to test the concrete application” of the law.

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