The bill aims to address the threat that disinformation or “fake news” offensives pose to democratic processes, including next year’s European elections. It is understandable and justifiable to try to prevent manipulative content from circulating online, but the solutions proposed in the bill could be unworkable and even counter-productive.
Because of a perceived urgency, the bill was drafted in a rush and takes insufficient account of the possible perverse legal and political effects during wars waged by authoritarian regimes.
One of the bill’s key provisions is an extension of the powers of the High Council for Broadcasting (CSA), which regulates broadcasting in France. It would be empowered to rescind the licence of a radio or TV broadcaster (or refuse to give it a licence) if the broadcaster was controlled or “under the influence” of a foreign government and if it “threatened the nation’s fundamental interests, above all by broadcasting false news.”
A different approach should be used. Instead of targeting “foreign influence,” the CSA should be able to demand guarantees of editorial independence from all media outlets and to issue an appropriate sanction when it is established that an outlet is not complying. Imposing the same requirements on all media (regardless of geographic origin) would prevent reprisals by countries that are already waging information wars.
As regards the creation of a mechanism for summary judgments during elections to prevent the online dissemination, by artificial and massive means, of “false news liable to affect the integrity of the polls,” RSF calls for rejection of the amendments referring to “dishonesty” and defining “false news.”
In an emergency, a judge would be unable to evaluate the honesty of the person circulating a news item. And defining false news as “any allegation of a fact lacking verifiable elements liable to make it probable” misunderstands the nature of journalistic work and does not leave it to the judge to determine a news item’s clearly erroneous nature.
RSF calls for reinforcement of the non-accountability criteria (due to anonymity or dissemination from abroad, for example), preventing French jurisdiction. At the same time, RSF doubts the effectiveness of this provision and fears perverse effects, with those responsible for deliberately mendacious content being able to argue that their case is not within the judge’s competence.
As regards the bill’s reference to a requirement for online platforms to cooperate and act transparently, RSF believes that such an important issue should be the subject of a separate law. The impact that these privately-owned companies have on the dissemination of information, access to information, and the integrity of the public debate requires stronger democratic guarantees.
The obligation to be transparent about content sponsoring during elections should be a permanent one. But more is needed. The legal status of online platforms needs a complete overhaul. A new regime of responsibilities and obligations must be established, especially with regard to algorithmic transparency and neutrality, promotion of content honesty and respect for international standards on freedom of expression.
The national assembly’s legal committee added a provision to the bill on 22 May requiring online platforms to cooperate with “organizations representing journalists, press publishers and broadcasting services” to “identify and promote news content produced by media companies in their news content listings.” This is something that RSF has been recommending.
RSF is currently working with media professionals on a “Journalism Trust Initiative” to define a set of standards on media transparency, media independence and respect for journalistic ethics. Media that satisfy these standards would be awarded a JTI certification that gave them concrete advantages.
France is ranked 33rd out of 180 countries in RSF's 2018 World Press Freedom Index.