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Newsletter of Cazeau & Associés Law firm – May 2018

The fight against “fake news” and the entry into force of the GDPR: the news on the challenges related to the digital area

  • Fight against “fake news”
The fight against fake news is not a recent phenomenon, rather it has worsened notably because of the digital revolution. Indeed, Article 27 of the law of July 1881 on freedom of the press already punishes the dissemination of “fake news, documents that are fabricated, falsified or deceptively attributed to third parties when, made in bad faith, (the news) will have disturbed the public peace”. Additionally, the Electoral Code indirectly forbids fake news. Nevertheless, the fast development of the digital era has called for a brand-new law.
President Macron also announced, early this year, the drafting of a bill that aimed at fighting the publication of false information. This bill was published on March 7, 2018 which purports to reinforce the control on the Internet and fight against “fake news” especially during election periods. This soon to be law, entitled “law of reliability and confidence of the information” aims at the digital in a broad sense, which includes social networks, video-sharing sites, and “media under the influence of a foreign State”.
According to the Ministry of Culture, it is not a question of defining what are “fake news”, but rather of countering “the universe, the tips, the channels for spreading fake news today”.
Yet, the absence of a definition of “fake news” leaves the possibility of defining them to the judiciary power and to the “CSA” (Audiovisual Council), such entities would then present themselves as the referees in the “fake news” matter. This lack of definition is already the subject of important criticism, which is fed by the fear of a mechanism of censorship. In addition, the concept of fake news was originally aiming at deliberately misleading information, but the concept has been expanded. Indeed, erroneous information can be described as fake news even if the author acted in good faith.
The bill provides for 3 important proposals. Firstly, the obligation for digital platforms to publish by whom and for what amount the contents of the information have been sponsored. It needs to, “beforehand, impose on the platforms increased transparency obligations in order to allow, on the one hand, the public authorities to detect possible destabilization campaigns of the institutions by the dissemination of false information and, on the other hand, allow the Internet users to know in particular the advertiser of the sponsored contents”.
The second proposal results in the expansion of the “CSA”’s powers. Indeed, the law will allow the “CSA” to revoke or suspend the convention of a media under foreign influence if it considers that it propagates a false information.
Lastly, the bill provides for the jurisdiction of the “juge des référés” (judge for summary applications) to put an end to the dissemination of a news judged to be false, this action “allowing him, where appropriate, to delete the content in question, to dereference the site, to close the user account in question, or even to block access to the website”.
However, it should be noted that these measures will be limited to election periods. This raises the question of fake news outside the electoral context which would pose a considerable threat to democracy.
At the European level, on Thursday 26th of April 2018, just over a year before the next European elections in May 2019, the European Commission presented measures to combat online misinformation and new rules regarding the digital platforms. Firstly, it proposes a “code of good practices”, which must be developed and applied by digital platforms by July, in order to “guarantee the transparency of sponsored contents, especially political advertising, but also to limit the targeting options for this type of advertising and to reduce the revenues of the misinformation vectors”.
In addition, it proposes to create a European network of fact checkers, but also a secure European online platform on misinformation. Finally, the Commission’s proposal provides for the creation of an EU observatory to monitor the impact of the new rules. The Commission says that particular attention will be paid to the evolution of policy and regulatory approaches throughout Europe, placing the problem of misinformation as one of the main objectives of the EU.

  • The protection of personal data
Finally, after four years of negotiations, the EU Member States have agreed on a new text, the General Data Protection Regulation (GDPR), which is the new European normative framework for the treatment and circulation of personal data. This text is crucial for the protection of the privacy of European citizens as it redistributes the cards within the digital economy. Indeed, it aims for a European harmonization, the reinforcement of people’s rights, as well as the development of the notion of accountability.
The GDPR will come into force on May 25, 2018 and will repeal the Directive on the protection of personal data of 1995. A bill will amend the Data Protection Act of 1978 to integrate the provisions of the GDPR.
The GDPR thus simplifies and harmonizes the laws of Member States, supervises new ways of using data (without hindering development), creates “digital” trust, unifies and improves the protection of citizens’ data, reduces administrative formalities and finally ensures the free movement of data within the EU.
In particular, the GDPR simplifies administrative formalities, introduces an impact assessment, provides for a right to be forgotten, as well as the principle of consent, and strengthens the possibilities of investigation and sanction by the national supervisory authorities.
The CNIL (French national supervisory authority) has also published 6 practical steps to prepare for the GDPR, namely: designation of a pilot, mapping the treatment of personal data, prioritizing actions, managing risks, organizing internal processes and finally documenting the conformity.
The sanctions for the failure to comply with the obligations are particularly high and can go up to 20 million euros or 4% of the total annual worldwide turnover of the previous financial year, whichever is the higher.