France v. Fake News v. Free Speech

By ANDREW POIRIER

By now, anyone who hasn’t been living under a rock in the middle of nowhere has heard the news. Fake news, that is. While certainly not a phenomenon unique to our times, the technology of the modern age has changed the means by which we communicate with each other and share information. Indeed, trickery, lies, and propaganda are nearly as old as the human race itself, yet these days we find ourselves faced with a constant influx of almost more “alternate facts” than we can reasonably process, be it about something minor like the weather or as important as a national election.

Perhaps the best known case of the latter example (and it truly is a sad thing that enough countries have experienced similar things to the point of requiring specification as to which one) was the 2016 American general election campaign, which prominently featured fabricated stories and false reports about both controversial candidates, Hillary Clinton and the now-incumbent President Donald Trump. Even now, more and more evidence is being revealed through the ongoing investigation of U.S Special Counsel Robert Mueller that suggests a great deal of foreign interference occurred and heavily influenced the outcome of the election, with “fake news” serving as a nefarious tool to sway American voters into Donald Trump’s camp.

However, as previously mentioned, there have been other instances in other countries that are just as worthy of note. For instance, France is now in the process of brainstorming and implementing a new law with the intention of combating fake news following the mass propagation of false claims that French President Emmanuel Macron was benefiting from an illegal offshore bank account. While demonstrably false, these claims manifested themselves at a crucial time in the French electoral process, and cost Macron a significant amount of support when he needed it most. Despite winning the election, Macron was personally offended by the borderline- slanderous stories, and has taken it upon himself and his administration to be proactive in the fight for truth and against fake news.

Regardless of whatever prompted this bill, France will have to proceed with great caution and care to ensure that its efforts to deter fake news do not negatively affect its citizens’ right to free speech. It is somewhat ironic that one of the great pillars upon which Western civilization itself is built is at risk of being toppled by the very same law that targets one of the greatest threats to truth and justice of the modern age, and that is exactly what is of concern to a great many people both within and beyond French borders.

The intention here is a noble one, but legislation passed with good intentions can easily go wrong, and the risk of a bill such as this one being hijacked to serve private agendas instead of public interests is significant. To quote Shannon Gormley from the Ottawa Citizen, “I can scarcely imagine a worse person than a politician to discern news from political propaganda; if politicians wish to protect democracy from the very worst of their successors, they might leave it alone.”

The specifics are as follows: The proposed law would force news organizations and social media companies to fully disclose information pertaining to the sponsors of advertisements and other content on their respective platforms, specifically relating to who payed how much for what, resulting in greater transparency. In addition, limits as to how much can be donated by certain individuals or organizations suspected or known to have connections to foreign powers may be imposed in order to prevent outside influence from affecting French affairs.

None if this is very controversial, and most people agree that these measures are reasonable. However, the same cannot be said for another part of the proposed law that would only ever apply during election campaigns, which would allow French broadcasting authorities to arbitrarily suspend the licenses of any “foreign- influenced media organization”, and allow for anyone to sue for specific content to be taken to the courts for a rapid-response review to decide if the news is fake or actual. If it is found to be the former, then major media outlets and platforms would be required to systematically remove the content from the internet and airwaves in a manner similar to that used against child pornography and terrorist advocacy.

When used against actual fake news, this could serve as a powerful weapon in the war on misinformation and meddling. Yet, the entire premise of this law only applying for the duration of national election campaigns seems questionable, to say the least. Politicians running for the office of president might make unfair and unethical use of this law in order to discredit and defame their rivals, and the potential for improper use, as well as the price for such impropriety, is high. Such underhanded tactics would interfere with the democratic processes of France just as much, if not more, than any sort of foreign intervention, and measures should be taken to avoid such situations. However, such measures could in turn detract from the law’s efficacy in fighting fake news before it gets too far gone to stop. And so is demonstrated the level of complexity, complication, and consternation involved in making a law like this that actually works without causing more harm than good.

 

Furthermore, the actual implementation of the bill into law in its current form would be a practicality nightmare. Knowing of the potential criticisms they could face, French officials have been very careful in drafting this legislation, making use of narrow definitions, calling upon judicial precedents, and provisions that claim that even blatant falsehoods are not eligible to be struck down in court so long as they were expressed as opinion and not fact. This at least shows that the French are trying to be careful and not throw the baby out with the bathwater when it comes to freedom of expression, though it certainly increases the amount of work it would take for a judge to determine the validity of a fake news claim. However, France’s judiciary is incredibly underfunded in comparison to other European countries, with only 10.7 judges and 2.9 prosecutors per 100 000 inhabitants, as compared to the 20.9 and 11.8 European average, respectively. Many fear that, being faced with too many cases to properly process, the courts will disregard legitimately false media or mistakenly validate fraudulent claims due to being unable to investigate any of the cases in great detail because of the rapid-response nature of the proposed law.

Ultimately, even though fake news is a problem that needs to be tackled, the risks, complications, and frustrations of legislating such matters are significant. While we may one day reach the point where a new law doing just that can be agreed upon and implemented, it is not something that can or should be rushed. Macron’s proposed law still has many kinks to work out and bumps to smooth over, and just doesn’t seem ready yet. In the meantime, the best thing the people of France (and the Free World, for that matter) can do is to become and remain informed in all aspects of their lives, and to foster a culture where fact-checking, critical thinking, and civic duty are all taken seriously. Only in this way can truth prevail over ignorance and lies. And prevail it must.

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