Fake News: France's Proposed Law Won't Work
(Bloomberg View) -- French President Emmanuel Macron has decided to strike back against Kremlin-funded election interference. As a presidential candidate, he was targeted by a campaign of fake news and hacking attempts (assumed to be Russian in origin), and he is reported to have taken the affront personally. He is seeking to change the law to fight online fake news, a topic of interest across Western democracies.
It’s a worthy goal in theory, a tricky one in practice. His much awaited fake-news bill, whose details became known this week, is a warning to other regulators that combating fake news is easier said than done.
The bill’s publication is due any day, but Liberation’s Jerome Lefilliatre carried a report on its details, confirmed by France’s culture minister Francoise Nyssen. The bill empowers the independent broadcast authority to unilaterally suspend the license of any “foreign-influenced media organization” during a national electoral campaign (a clear dig at Russia). It also mandates that social networking platforms disclose the identities of advertisers who pay to spread content, as well as the amounts they are paying.
Transparency is welcome, as is the goal of empowering citizens to make their own judgments based on where information is coming from, but given that entities seeking to influence campaigns are presumably clever enough to use shell companies, it remains to be seen whether this will make a difference in practice.
The most consequential piece of the bill, however, is a provision making it easier to sue to get “fake news” scrubbed from the internet and the airwaves. Culture minister Nyssen is careful to note that the government is staying clear of the debate on how to define what counts as “fake news.” As it happens, France already has a criminal law against spreading “fake news,” enacted all the way back in 1881, and the bill does not aim to change the settled legal definition. Instead, it makes it easier to sue under that definition.
During a national election campaign season, anybody will be able to sue under an emergency procedure known as “référé” to get fake news scrubbed if it is being “massively and artificially spread.” Moreover, the law mandates that online platforms cooperate with authorities to scrub content, under the same guidelines that they already do to scrub material such as child pornography and terrorism advocacy. Nyssen said that she worked with the major platforms during the bill drafting process and praised their constructive input.
The bill’s goal is worthy: As Bloomberg View columnist Leonid Bershidsky has often argued, it is hypocritical for social networking sites to claim that they are neutral tech platforms and not media companies. Free speech is sacrosanct, but this does not mean people should be free to peddle fake news.
Still, it is hard to see how the French bill in its current state will do much to fix the problem. For one thing, the “fake news” offense is very narrowly construed to protect free speech. It is not enough under the law for news to be fake; rather, it must be proven that the author knowingly and maliciously lied, a high evidentiary bar, and that the news “disturbed or could have disturbed public peace.”
Judicial precedent has narrowed it further, ruling out, for example, news that turned out to be fake but was “plausible,” or incorrect elements that are only “details” of a news story. In a landmark ruling in 1999, France’s supreme court held that opinions, even demonstrably false ones, cannot count as “fake news.” In other words, it is very hard to secure a conviction under the law. In my experience working as a reporter in France, as a rule editors are paranoid about France’s draconian libel and privacy laws, but I don’t recall anybody ever fretting about falling afoul of the fake news law.
The bigger worry is implementation. The French judicial system is chronically underfunded (France spends half as much as Germany per capita on its judicial system). France has 10.7 judges and 2.9 prosecutors per 100,000 residents, versus a European average of 20.9 and 11.8 respectively. If absolutely anybody can get a hearing before a judge whenever they deem something they see on Facebook “fake news,” it is hard to see how this wouldn’t invite a tsunami of mostly frivolous lawsuits.
I see two plausible outcomes, neither of them good. The first is that, faced with an onslaught, judges simply throw up their hands and use the law’s narrow confines to throw out all complaints in practice. The second is that, working under emergency conditions, they make mistakes and ban legitimate news and exercises of free speech. After all, while the internet is full of lies, it is also the case that many legitimate scandals started out as internet-driven rumors.
Imagine a potentially damaging rumor spreads about a candidate, that is quashed by a judge after a fake news suit. What if the candidate squeaks through on a narrow election and on appeal, it turns out that the rumor was true or erroneously gagged? An event like this is not the most likely, but neither it is implausible given where things currently stand.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Pascal-Emmanuel Gobry is a Paris-based writer and fellow at the Ethics and Public Policy Center.
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