Fighting False Information - A Strengthened Combat During Elections

1. Transparency Obligations and Criminal Liability

The most frequented digital platforms are obliged, under criminal sanctions, to guarantee the transparency of the information they disseminate during national elections : referendums, legislative, senatorial, presidential and european elections.

Article L163-1 of the Electoral Code imposes, during « the three months preceding the first day of the month of general elections and until the date of the election round when they are acquired”, a series of obligations on spreading websites that attract more than “5,000,000 unique visitors per month on the basis of the last calendar year.

Divided into three categories, they consist in informing their users in a “clear, fair and transparent” way about :

  • the identity of the natural or legal person and the person on whose behalf, if any, it has declared that it is acting, who pays the platform in return for promoting information content related to a debate of general interest;

  • the use of [their] personal data in the promotion of information content related to a debate of general interest”;

  • And the amount of remuneration received in return for the promotion of such information content when the amount” exceeds 100 euros (excluding tax) per publication.

The plaforms concerned will have to centralise all this information “within a register made available to the public electronically, in an open and regularly uptaded format”.

The violation of the above information obligations entails the criminal liability of its author. Article L112-2 of the Electoral Code distinguishes between natural and legal persons. The former is liable to a one-year prison sentence and a fine of 75,000 euros, while the latter is liable to a fine of 375,000 euros, a permanent or temporary (not exceeding 5 years) professional ban, and publication of the condemnation (see Articles 131-38 and -39.2 and .9 of the Criminal Code).

By a decision of December 20, 2018 (No. 2018-773 DC), the French Constitutional Council ruled that the new system for the repression of false information did not constitute a disproportionate infringement of the freedom to undertake, since it is limited in time to a special category of operators and pursues the general interest.

2. Judicial Summary Proccedings for Cessation of Disseminating

Article L163-2 of the Electoral Code introduces a new judicial summary procedure. It empowers the emergency judge to adopt, during an election period, “any proportionate and necessary measures to stop the dissemination” of “inaccurate or misleading allegations or imputations of a fact likely to alter the sincerity of the forthcoming election […] disseminated in a deliberate, articial or automated and massive manner by means of an online public communication service”.

Seized “at the request of the public prosecutor, any candidate, any political party or group or any person having an interest in acting”, the summary proceedings unit of the Paris Tribunal de Grande Instance must rule within 48 hours, a period which will also oblige the Paris Court of Appeal in the event of a last resort.

The decision to prohibit the continued dissemination of information in an electoral context exceptionally hinders the author’s freedom of communication and expression.

As a result, the Conseil constitutionnel decided to over-frame the dissemination procedure with several interpretation guidelines. Thus, “allegations or imputations do not include opinions, parodies, partial inaccuracies or a simple exaggeration”. Their falsity has to be “objectively demonstrated”. In addition to recalling the three cumulative conditions attached to the dissemination methods – “artificial or automated, massive and deliberate” – the Council specified that the falsity of the information concerned, as well as the alteration of the sincerity of the vote, must be “manifest” (see paragraphs 21 and 23 of the above-mentioned decision).

3. Administrative Suspension of the Dissemination by Foreign Media

New Article 33-1-1 of the Law (No. 86-1067) of September 30, 1986 on Freedom of Communication allows the CSA, during the predefined election period, “if it notes that the service which has been the subject of an agreement concluded with a controlled legal person, within the meaning of Article L233-3 of the Commercial Code, by a foreign State or placed under the influence of that State, deliberately disseminates false information likely to alter the sincerity of the vote, [to] order the suspension of the dissemination of this service by any means of electronic communication until the end of the voting operations”.

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