Macron’s Fake News Solution Is a Problem
A new French law aims to separate truth from fiction, but it will mostly just give the government more control over the media.
In the aftermath of a very agitated U.S. presidential campaign that was tarnished — and its outcome likely influenced — by the use of so-called fake news, as well as an election campaign in France that was nearly upended in the same way, French President Emmanuel Macron has made the fight against fake news a major priority in his legislative agenda.
France has often seen new legislation as the solution for whatever problems ail the country, and Macron, bruised by rumor-filled attacks during the 2017 campaign, declared his intention to pursue legal remedies against fake news in spite of vigorous criticism from academics, journalists, and media watchdogs.
The global phenomenon of fake news is not new. In the 1930s, the American radio host Orson Welles perpetrated an infamous radio hoax in which he recounted in sober journalistic tones the events of the novel The War of the Worlds by H.G. Wells for an unsuspecting audience. Many believed the events to be true, not being familiar with the novel. With the advent of the internet, fake news can now quickly gain an international audience simply by being shared and retweeted, and this has renewed calls to push back against online rumormongering. The bill proposed by Macron seeks to fight “fake news” through various legal means but without providing a clear definition of the phenomenon — which may likely prove to be the most difficult obstacle to overcome.
New laws may also be unnecessary. The dissemination of fake news, during or outside of the electoral period, has already been subject to several criminal statutes for more than a century. Article 27 of the 1881 Freedom of the Press Law punishes the dissemination in bad faith, by any means, of false news, falsified documents, or statements attributed to third parties that might disturb the public peace or “will be likely to shake the discipline or the morale of the armies or to hinder the war effort of the Nation.” In addition, the French penal code criminalizes the spreading of false information that might harm people or compromise the safety of a ship or aircraft. Some fake news currently propagating through online spaces could obviously fall within the scope of one of these provisions. While these measures may be effective when there is a clear perpetrator and victim, they run into obstacles when anonymous sources seek to manipulate public opinion, which is the most prevalent form of fake news being shared on social networks today.
With regard to elections, Article L97 of France’s electoral code prohibits the dissemination of false information that might influence the behavior of voters and compromise the result of the election while still allowing vigorous free expression.
A solid legal arsenal already exists to repress the dissemination of fake news in the media. France’s media watchdog, the Conseil Supérieur de l’Audiovisuel, requires that media content reach a minimum level of accuracy and honesty, according to the 1986 Freedom of Communication Law. This has led, for example, to several injunctions following the broadcast of reports containing erroneous information or audio or visual montages.
The bill proposed by Macron would target a new category of fake news not currently covered by the existing law. Macron proposes rapid intervention to report, identify, and remove fake news by creating new implementations of référé, a special procedure that allows one party to refer a case to a single judge to ask for a provisional order.
This proposal raises the question of what constitutes fake news. In English, the expression “fake news” has a very particular meaning. But the adjective “fake” refers to what is misleading, essentially on a formal level, while the adjective “false” corresponds more exactly to what is untrue in substance. The same content can of course fall into both categories when it contains false information presented within the editorial form of a newspaper article. But the term fake could be used to target types of content that, without being exact or authentic in substance, could not be qualified as false. This is the case, for example, of information disseminated by parody sites such as the Onion. It has become all too common for Onion-like publications to go beyond satirical commentary and to be taken seriously by some observers. For example, in April 2017, then-candidate Macron was confronted by Whirlpool employees in his hometown of Amiens, reacting to a false interview published in 2016 by the satirical site Le Gorafi. Far-right activists had widely shared the satirical interview, in which Macron purportedly said, “When I shake the hand of a poor man, I feel dirty for the whole day.”
Add to this online content from those with extreme political views, combining conspiracy theories and factual information, and you have content that straddles the vague line between truth and fake news, depending on the consumer’s point of view. This diversity of content poses serious difficulties in providing a legal definition, which seeks to create a clear line between truthful and false news, as well as defining the risks of fake news. Under French law, however, limits on freedom of expression must be predictable and proportionate to a legitimate aim, as the European Court of Human Rights has often pointed out. According to the court’s case law, freedom of expression — enshrined in Article 10 of the European Convention on Human Rights — permits the use of exaggeration, provocation, and satire, particularly when politicians are implicated, and may even include ideas or information that offend, shock, or disturb the population.
Freedom of expression includes a right to doubt, to assume, and to theorize. This blurs the line between declarations of fact and value judgments and tends to reinforce the debate of ideas. The U.S. notion of the “marketplace of ideas” is based on this same reasoning.
The free exchange of ideas and information is considered the most effective way to search for and discover the truth. If fake news plays a meaningful if small role in this exchange, it will be difficult to legally curtail it. Consequently, a number of French journalists have accused the proposed law of being a tool to threaten freedom of expression.
But the real problem lies less in the nature of fake news than in its diffusion. It is spread online by social media and search engines, where fake news coexists with authentic information presented or shared by professional journalists. The marketplace of ideas is thus affected by technical and economic mechanisms that lead to the presentation of information whose reliability and quality is extremely variable. Finally, the phenomenon of “post-truth” — where appeals to emotion dominate over reasoned discourse — adds a significant social dimension. This explains the power that fake news holds over the opinion of a substantial part of the population during divisive events such as elections.
Macron’s proposed law seeks to deploy new methods to limit the propagation of fake news and aims to identify and remove stories promptly. Online services, mainly content platforms and foreign media, will be subject to new rules. Foreign-controlled media in particular will fall within a new category of publishers subject to very different obligations and liability than content platforms. The inclusion of foreign media is a response to some Russian sites, such as RT and Sputnik, which are regarded as particularly prolific vectors of misinformation and propaganda. Such restrictions, however, would be applicable only up to five weeks before voting so as to remove from the public debate fake news that could affect the free choice of voters.
In the case of digital platforms, which are very vaguely defined as social media and video-sharing sites, they will face more stringent obligations in terms of transparency and cooperation. Online media companies will have to publicly report the amounts of money and the identity of those behind sponsored content, which is more conducive to the spread of fake news. The bill could therefore rely on the initiatives of certain services, such as Facebook and Google, to reinforce the control of content that is relayed, particularly through partnerships with several media platforms. Furthermore, platforms will be required to cooperate in the reporting and removal of fake news, as is already the case in the fight against online child pornography and the expression of terrorist sympathies on social media. Finally, the bill provides the possibility of judges issuing an order of last resort to put an end to mass dissemination of fake news, however it is eventually defined.
Paradoxically, this new instrument may not only be impractical but could be a dangerous tool in certain circumstances. The constantly changing definition of fake news can give candidates and political parties a judicial weapon aimed at preventing the release of disturbing information during an election. If an overly broad interpretation of fake news is used, there is a risk that governments would have a tool to control public debate, putting at stake not only the right of citizens to be informed but also leading to judicial overreach, which would put at stake the very foundation of democracy.
The Conseil d’État, which is both the supreme administrative court and a legal advisory body for the government, delivered a nonbinding opinion on April 19 concerning the draft law. Although the council recognized that the propagation of fake news is being carried out according to new vectors, it agreed that the current state of the law, particularly in electoral matters, does not adequately respond to all the risks entailed by these new phenomena. The council also remains concerned about vague wording and inefficient procedures.
France’s fake news law will most likely pass with flying colors, though it will almost certainly be challenged constitutionality by political opponents or private citizens. A better approach to the problem would have been to strengthen the formidable legal arsenal already in place. As there is no legal definition of fake news under French law, it remains unclear how magistrates will be able to judge what is false or true in political matters. Implementing such a law would require judges to be extremely creative and subjective in interpreting what exactly constitutes fake news. Second, such provisions could lead to self-censorship as online publishers, fearing legal action, might curtail what is perfectly legitimate speech. The questions remains: How would this law be implemented if, for example, a French politician goes too far in publicly deriding his or her opponents or a foreign leader, as British Foreign Minister Boris Johnson famously did when he published a poem insinuating that Turkish President Recep Tayyip Erdogan fornicated with goats?
Macron’s proposed legislation has no answer. It will not solve the problem of fake news and may indeed amplify it.