The Coronavirus And Fake News

Author:August & Debouzy
Profession:August Debouzy

is circulating here and there, particularly on social media, concerning the spread of the coronavirus, how to protect oneself against it, effective medical capabilities, the consequences of closing borders, and so on.

In fact, this Law is only intended to apply during election periods, to maintain the integrity of the polls, and it can only be used against internet platforms. In Article 12, however, it does give the CSA (the French broadcasting authority) the task of ensuring that, even outside election periods, those platforms contribute to "preventing the distribution of misinformation liable to disturb the peace".

This is precisely the definition of the fake news offence given in Article 27 of the Law of 29 July 1881. According to that provision, false health information that would have the effect of disrupting international relations, causing waves of rationing or even an exodus, are "liable to disturb the peace". However, only the Public Prosecutor can decide that a prosecution is appropriate and should be brought for this criminal offence; prosecutions cannot be brought by ordinary private individuals.

The prosecutor (1) and the CSA (2) are therefore responsible for preventing the distribution of any misinformation in these circumstances.

1- Prosecution of the fake news offence by the prosecutor.

Article 27 of the Law of 29 July 1881 makes it an offence: "to publish, distribute or reproduce, by any means whatever, misinformation, fabricated or falsified documents or documents falsely attributed to third parties, when, having been produced in bad faith, they have the effect of disturbing the peace or are liable to disturb the peace". In order for the offence to be proved, a number of elements must be present.

1-1 "Fake news"

First of all, the misinformation must be "new", which means information that had not previously been distributed, and it must be false. This falseness is assessed objectively, and it must be proved by the prosecuting authority. This is the major difficulty which results in the offence rarely being used. The misleading nature of the information must be proved. Sometimes falseness is so obvious that this poses no difficulty. However, the falseness of information of a scientific or medical nature, which is sometimes inherently controversial, tends to be less easy to prove. Also, just because an official version has been proclaimed does not mean that contradicting it necessarily involves a misrepresentation. A typical...

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