Law No. 2018-1202 of 22 December 2018 on combating the manipulation of information

(by Army General (2S) Watin-Augouard, Founder of the FIC)

The law announced by President Macron during his New Year speech to the press on 3 January 2017 has been promulgated following consideration by the Constitutional Council. The Council Members (‘Sages’) declared that the text was in conformity with the Constitution (Decision No. 2018-773 DC of 20 December 2018). Their only reservation was to limit its application to information that is “manifestly” inaccurate or misleading. The organic law No. 2018-1201 of the same date integrates the provisions of the aforementioned law into Act No. 62-1292 of 6 November 1962, relating to the election of the President of the Republic by universal suffrage. With the same reservations, this law was also declared to be in conformity with the Constitution (Decision No. 2018-774 DC of 20 December 2018).

The law concerns legislative, senatorial and European elections along with referendum operations and, through applying the organic law, the election of the President of the Republic. It does not, therefore, have any bearing on primary or local (regional, departmental, municipal) elections. Its opponents objected that the existing body of law was sufficient [law of 29 July 1881 on the press (Art. 27[1]), electoral code (Art. 97[2]), criminal code]. However, the purpose of the law is not to target (often unknown) authors, but to act on the flow of information, and therefore mainly on platforms. Information content is related to debates of general public interest when it is has a link with election campaigns. This link should thus be brought to the fore.

The law modifies the electoral code, law no. 86-1067 of 30 September 1986 relating to the freedom of communication and imposes a duty of transparency (sponsored content) for online platform operators. It creates a supervisory period presided over by the urgent applications judge (‘Juge des Référés’), broadens the powers of the French ‘CSA’ and imposes a duty of cooperation on the platforms.

The law of 22 December 2018 on combating the manipulation of information has been considered a liberty killer or an inoperative measure by its opponents. Despite the criticisms voiced during its review and its rejection by the Senate, it was found to be in compliance with the Constitution. Its main defect is doubtless its restrictively French character, whereas the issue deserves to be handled on a European scale. The European Commission became aware of the problem in 2015 and was notified of the manipulation of information that marked the Brexit referendum and French presidential election. It set up a high-level working group and launched a public consultation on 13 November 2017.  On 26 April 2018, Mariya Gabriel, European Commissioner for the Digital Economy and Society, presented a paper on combating online misinformation. Faced with this phenomenon, the Member States are moving forward in a non-coordinated manner, some favouring non-binding actions, others (Germany, France) opting for legislative channels. The European Commission promotes an approach based on self-regulation, as expressed in its communication. The measures put forward include establishing a code of good practice (which recalls the EU Code of Conduct against hate speech and terrorist content), creating a secure European online platform on misinformation, strengthening Media education and providing State support for quality journalism. A report should soon be drawn up on the subject. Whatever the conclusions, the focal issue will undoubtedly be modifying the e-commerce directive of 8 June 2000, which currently offers platforms a favourable status. This directive holds the key to explaining the provisions of the law of 22 December 2018, which are often not very restrictive when it comes to such platforms.

[1] Article 27 of the law of 29 July 1881 on the press stipulates a fine of 45,000 euros as punishment for “the publication, distribution or reproduction, by any means whatsoever, of fake news or facts that have been manufactured, falsified or deceitfully attributed to third parties, when, made in bad faith, this undermines, or threatens to undermine, public order”. Article 32 of the same law punishes defamation through the press or any other means of publication.

[2] Article L. 97 of the electoral code stipulates a year’s prison sentence and a fine of 15,000 euros as punishment for “those who, using fake news, slanderous rumours or other fraudulent manoeuvres, have modified or diverted ballots, or led one or more voters to abstain from voting.”