Since 2016, the Brexit referendum and the election of Donald Trump, two major events that occurred only a few months apart, more and more democratic countries (in the liberal sense of the word) have experienced the parasitization of national-scale elections through the spread of false information online. The “fake news” problem comes less from their existence than from their massive distribution via gigantic digital platforms, such as “Facebook” or “Tweeter”.
The algorithms’ indifference to both the truth and falsity of the information they are responsible for disseminating has allowed individuals, and in some cases foreign governments, to orchestrate large-scale misinformation campaigns. The risk of a gradual transformation of the most popular social networks and sharing websites into ultra-efficient propaganda tools in the service of malicious (anti-democratic and illiberal) interests has convinced several States to legislate against the phenomenon.
On December 22, 2018, France adopted Law (No. 2018-1202) on Combating False Information. The origin of the text dates to the disruption of Emmanuel Macron’s presidential election in May 2017, following a fake news accusing him of hiding an offshore bank account in the Bahamas.
Adopted under an accelerated procedure and despite the irreductible opposition of the Senate, the new legislation combats false information along two main lines, one of which criminalizes the dissemination of it during election periods, the other organizes a permanent system of regulation between the Conseil Supérieur de l’Audiovisuel (hereinafter CSA) and the main digital broadcasters.
Until then French Criminal Law had only focused on punishing the publication of fake news. The abusive exercise of freedom of the press is punishable by a fine of 45,000 euros (Article 27 of a Law of July 29, 1881); while the author of a manipulation of votes is liable to a penalty of one year’s imprisonment and a fine of 15,000 euros (Article L.97 of the French Electoral Code).