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France: Senate Rejects ‘Fake News Ban’ Bills

(Sept. 24, 2018) On July 26, 2018, the French Senate rejected two controversial bills aimed at “fighting fake news.” (Press Release, Sénat [Senate], Lutte contre la manipulation de l’information [Fight Against the Manipulation of Information] (July 26, 2018).)

Background

First announced by President Emmanuel Macron last January and adopted by the Assemblée Nationale (National Assembly) in early July, the draft laws aimed to prevent foreign state-owned media companies from influencing French democracy during electoral periods with false information and propaganda. (Proposition de loi organique relative à la lutte contre la manipulation de l’information, No. 772 [Proposed Organic Law Against Manipulation of Information, No. 772], National Assembly website (last visited Sept. 20, 2018); Proposition de loi relative à la lutte contre la manipulation de l’information, No. 799 [Proposed Bill on the Fight Against the Manipulation of Information, No. 799), National Assembly website (last visited Sept. 20, 2018); Clara Nugent, France Is Voting on a Law Banning Fake News. Here’s How It Could Work, TIME (June 7, 2018).)

Proposed Changes

The wording of the bills indicated that they were in response to “recent electoral events [that] have shown the existence of campaigns aimed at disseminating false information intended to change the normal course of the electoral process through online communication services.” (Proposition de loi organique relative à la lutte contre la manipulation de l’information, No. 772,  exposé des motifs; Proposition de loi relative à la lutte contre la manipulation de l’information, No. 799, exposé des motifs (all translations by author).)

The proposed legislation would have amended the Code électoral (Electoral Code), thereby imposing a new obligation upon social media companies to allow users to flag stories they believe to be false and alert public authorities. (Proposition de loi relative à la lutte contre la manipulation de l’information, No. 799, art. 9.) Electoral candidates who spotted a false story would have been able to require a judge to decide within 48 hours whether to take down the story. (Id. art. 1.) The bills also aimed to give authority to the French Audiovisual Council, which regulates radio and television, to block foreign state-controlled broadcasters that publish false information from broadcasting until the end of the electoral process. (Id. art. 5.)

Reception and Rejection by the Senate

Most criticism of the proposed bills has been directed at the provision mentioned above enabling electoral candidates to require a judge to rule within 48 hours on blocking false or “implausible” assertions. (Angelique Chrisafis, French MPs Criticise ‘Hasty and Ineffective’ Fake News Law, THE GUARDIAN (June 8, 2018).) The French legal community has also expressed concern about logistical flaws in the proposals. Using the example of offshore bank account allegations lodged against President Macron, Vice-President of the Paris Bar Basile Ader stated that “[i]t takes months of investigation to determine the veracity of some claims. A judge might not be able to verify it in 48 hours. It’s going to create a lot of uncertainty and hazard in an area where we need a lot of caution.” (Nugent, supra.)

This may be part of the reason why, even though the bills were adopted after a first reading at the National Assembly, the Senate rejected both bills without even discussing the content of the legislative texts. (Le Sénat rejette les propositions de loi sur les “fake news” sans même discuter des textes [Senate Rejects “Fake News” Bills Without Even Discussing the Texts] FRANCE INFO (July 27, 2018).) Senator and Rapporteur for the French Senate Law Commission Christophe-André Frassa justified the Senate’s rejection by explaining that the Senate had doubts “on the effectiveness of the proposed provisions” and the “risks of disproportionate constraints on freedom of speech.” (Id.)

Prepared by Sarah Ettedgui, Law Library intern, under the supervision of Nicolas Boring, Foreign Law Specialist.