Bill Wirtz is a Young Voices Advocate. His work has been featured in several outlets, including Newsweek, Rare, RealClear, CityAM, Le Monde and Le Figaro. He also works as a Policy Analyst for the Consumer Choice Center.
After president Macron had made it one of the priorities earlier this years France is cracking down on "fake news" online. The intentions of his government raise serious concerns about arbitrary judgements and freedom of speech.
During his "wishes to the press" on January 3, French president Emmanuel Macron had alluded to the creation of a new law that would fight the presence of "fake news" on social media. Macron had himself suffered from a negative campaign sparked by the ominous "MacronLeaks", (of which parts have been discredited, and parts have not yet been analysed), which is the reason for his move against the practice of deliberately false information. The French Ministry of Culture, which has taken on the job of drafting the legislation, cites three existing cases in which "fake news" have attempted to influence election results: the 2016 presidential election in the United States, the Brexit referendum in the United Kingdom, and the recent referendum for the independence of Catalonia. The government conveniently doesn't use last year's French presidential election as a case study, partly because the evidence is lacking, and partly because it would give the impression that the president is merely acting in his own interest.
This week, French culture minister François Nyssen provided the press with an outline of the legislation that the government will submit to the National Assembly (in which it holds a breathtaking parliamentary majority). Three main points are worth remembering about the minister's outline, one more worrying than the other.
According to the ministry, this "fake news" legislation specifically focuses on the vulnerability of online users during election periods. In his initial address to the media, president Macron had suggested that the legislation would only affect election periods. The current proposal however seems to be constantly in effect, with election periods being particularly scrutinized.
The Conseil supérieur de l'audiovisuel (High council for audiovisuel content) will be in charge of "suspending agreements with media that has foreign influence", which means that an unelected institutional body will decide on its own:
Had similar measures been adopted in Turkey, the European community would be crying out for sanctions against a country that violates the rule of law and the values of liberal democracy. In this case however, with one of the supposed leaders of Europe instituting large-scale measures for censorship, everything seems to be fine. Let's just picture what this means: on top of scanning social media for content which could threaten the immediate security of French citizens, the administration attempts to every single piece of content that can be found on social media, which effectively includes the entire world wide web, for messages it then analyses for objective truth. The administration will then take the decision to censor that content for a certain period of time, knowing that as of now the minister hasn't elaborated if this would be a process that content creators could even appeal to.
The second measure in this law will an immediate judicial procedure. François Nyssen said about this issue that:
"The measure on which we're working until March for a law on "the confidence in information" needs to give us the permission to act rapidly once a fake news story becomes viral, especially in an election period."
It remains unclear how these two provisions, the immediate action of the high council for audiovisual content, and the judicial review will interact, but once again, serious questions need to be asked about the nature of work that the judge is supposed to perform. During an election period, a judge will be asked to verify the authenticity of a piece of information, which can manifestly sway the course of public opinion. Instead of relying on the marketplace of ideas to prove or disprove certain claims, the administration will charge a select number of individuals to perform an action that is incredibly difficult to do.
The last pillar of Macron's anti-"fake news" legislation is the mandatory cooperation of platforms such as Facebook and Twitter. The American social media giants will be required to assist the French government on revealing information about users, in the same way that they are already asked to do in cases of terrorism or child pornography. The Minister of Culture points out that:
"If there is negligence towards the obligations written in the law (obligation of cooperation, transparence on sponsored content), there will be repercussions."
Once again, the government doesn't go into detail about the exact sanctions it indeeds to impose on these social media platforms, but it opens a wide door into allowing itself to censor entire platforms that do not agree with its definition of "the truth".
Macron's "fake news" law, officially called "the law on confidence and reliability of information", poses a grave threat to press freedom and free speech online. The French Republic is running the risk of letting judges decide arbitrarily what the truth is supposed to be. Let us presume that the attentive liberal-minded reader believes that it is perfectly fine from a Macron administration to set these standards of truth. Would the same reader be so sure about his or her choices to attribute this power to the government, were Marine Le Pen the next president in the République? And that is the essence of free speech. Free speech isn't the fact of allowing us to say what the government wants to allow us to say, but it is the principle that we say what we damn well please, despite the government.