Debate: The legal fight against ‘fake news’ must not veer into censorship

The French National Assembly, which is debating a law that would allow “fake news” to be banned in the pre-election period. Richard Ying et Tangui Morlier/Wikimedia, CC BY

France’s parliament is debating a law that would give the state the power to censor “fake news”. If the law is passed, the French state will have the powers to ban, through a court order, the publication of any news considered false in run-up period before elections.

French MPs are sharply divided over this proposed law, and French media squarely oppose it. But it has a powerful supporter: President Emmanuel Macron. He has spoken out publicly against the toxic influence of “fake news” (the English term is used in France). During the presidential election campaign last year, Macron was angered by attacks that targeted him personally, notably stories alleging offshore bank accounts. He also accused Russia of spreading “deceitful propaganda” through the Kremlin-controlled Russia Today (RT) and Sputnik sites. Macron believes a law is needed to “protect our democracy from these false stories”.

Muzzling the media is a touchy subject in a country with a long history of press censorship. Under Napoleon III’s Second Empire, hostile newspapers were shut down and the press was tightly controlled. In 1881, the Third Republic passed a law  –  in the name, ironically, of liberty of the press  –  that gave the state the power to repress “false news”. That law, later amended, made it illegal to “offend” the President of the Republic.

In the early days of the current Fifth Republic, Charles de Gaulle took a similar attitude towards offence. He controlled French television news  –  all TV networks were owned by the state  –  by vetoing any story that displeased him. Ever since, the French media have lived with the lingering stigma of the Gaullist “high fidelity” media culture that, compared with the fiercely aggressive Anglo-American press, makes French political news coverage, especially on television news, seem indulgent, complicit, and supine.

In rebellion to this perceived media docility, political satire flourishes in France on the radio, in print, and now online. Every Wednesday, the cheeky Canard Enchainé newspaper newspaper irritates top French government officials and powerful corporations with embarrassing leaks. On the Internet, the investigative news site Mediapart has become the terror of all government ministers, and the undoing of more than a few. The Internet has unleashed voices of criticism that politicians can no longer control. The old reflex of suing for defamation is today little more than a defensive legal tactic that does little to change public opinion.

Fake according to who?

The debate about “fake news” didn’t start in France. It has a long and colourful history in Anglo-American journalism stretching back to the outlandish newspaper hoaxes and yellow press in the 19th century. The term “fake news” was dusted off and repurposed during the American presidential election when Donald Trump astounded the media with his alarming disregard for facts. The media also blamed the Internet in general as a cauldron of lies and falsehoods. The Marxists in the academy were quick to add their own ideological spin: fake news proved that market forces (i.e., the digital giants such as Facebook and Google) were undermining democracy in an “attention economy” driven by clicks and likes. Fake news became the new bogeyman in the era of social media and digital disruptions.

The debate took an unexpected turn when Donald Trump, now installed in the White House, turned the tables on the media by railing against them as “fake news”. Trump’s tirades on Twitter have polarised opinion in America: by railing against the mainstream media, he galvanises his support base hostile to elites; and, not surprisingly, it alienates media elites who have become hardened in their conviction that Trump is totally unhinged. Outside of America, there has been another, unintended, consequence. Trump’s fulminations against “fake news” have given foreign despots a cynical pretext to censor press criticism at home. In Syria, Bashar Al-Assad declared, “We are living in a fake news era”. The governments of Russia, China, Turkey, Burma, Venezuela, Philippines, Angola, Singapore, Cambodia  –  none of them paragons of democracy  –  are chanting Trump’s “fake news” mantra.

Now France, a Western democracy founded on Enlightenment values, is taking legislative measures to repress “fake news”. The outcome of France’s parliamentary vote is uncertain, but the precedent is dangerous.

That is not to say that “fake news” is not a problem. Falsehoods and lies contaminate public debate. But what exactly is “fake news”? Some attempts have been made to classify its meaning, including the Huffington Post’s Orwellian assertion that “some news is more fake than others”. Still, there is no clear agreement on what the term means  –  doubtless because it has been exploited for so many different purposes.

When Donald Trump unleashes a tweet storm blasting the “fake news” media, he targets major news organisations such as the New York Times and CNN. When these established news outlets refer to “fake news”, they mean false news stories circulating on social media that have not been produced, and fact-checked, by professionals like themselves. This mutual blame game renders “fake news” devoid of precise meaning. Fake news is complicated.

A typology of fake news

Let’s attempt to cut through the name-calling and attempt to establish a definition of “fake news”. First, the term has no single meaning. It’s is a hydra-headed monsters with several gargoyle faces.

  • Reports that are knowingly, and mischievously, false. For example, the story about the Pope endorsing Donald Trump for president. False. Another story claimed Trump had once “groped” drag queen RuPaul at a party  –  and was furious when he reached up his skirt to discover his male genitals. False. Yet the story, pure fabrication, attracted more than 300,000 engagements on Facebook.

  • Reports in the mainstream media that are false. ABC News, for example, apologised for a false report claiming that Donald Trump had instructed a top adviser to make contact with Russian officials. It’s this kind of false story that provides Trump with ammunition for his tweetstorms railing against the “fake news” media. It could be argued, however, that these stories are not “fake” because they are not knowingly false. As a Poynter story put it, they are “just plain wrong”.

  • Manipulated news reports, stories twisted out of context, or phoney photos and videos posted online to create misleading impressions. A Washington Post reporter tweeted a phoney photo of a near-empty arena with the ironic comment “packed to the rafters” to create the impression that a Trump rally had attracted an embarrassingly small crowd. The photo was phoney. Trump angrily called for the Post reporter to be fired.

  • State propaganda inserted into the news cycle by foreign states. For example, claims that Russia manipulated the American presidential election outcome through Kremlin-backed agents spreading fake news and buy advertising on Facebook. These disinformation practices, widespread during the Cold War, continue in the digital age.

  • Stories that are “spun” by PR firms and advertisers using pseudo news and events to attract publicity and advertising revenues. Like state propaganda, PR and advertising-spun news has been widespread in the mainstream media for the past century. In the digital era, it can be seen on news sites in the form of native advertising and branded content  –  in short, advertising wrapped in editorial packaging. Some newspapers like to call it “brand storytelling”. It’s not news, it’s advertising.

  • And finally, parody content that is churned out by sites such as The Onion in the United States and Le Gorafi in France. Parody sites use outlandish satire to mock the news cycle. Readers are supposed to know that stories are farcical, yet even serious news organisations routinely get tricked by satirical news. While it’s difficult to believe that a headline like “Trump to Split Time Between Trump Tower and the Kremlin” could be interpreted as true, there are always credulous and gullible members of the public.

Can “fake news” be banned?

The simple classification above demonstrates that “fake news” comes in many forms. Given the complexity of interpretation, how will the French state judge what is “fake” and what is “real” news? France’s proposed “fake news” law exempts satire and parody. Also, the draft law takes aim at the mischievous manipulation of online information -or disinformation - by foreign states. This concern is legitimate. Still, the proposed law’s definition of “fake news” is broad and gives the French state a troubling degree of latitude in seeking a court injunction to censor news on the pretext that it is false.

That is the real issue at stake: the role of politicians in determining what is true and false. When the state arbitrarily establishes itself as the official guardian of the truth, we must ask the question raised by Plato: Who guards the guardians? In a democratic society, surely the arbiter of truth and falsehood must never be the state. When the state arrogates the powers to decide what is “true” and “false”, truth itself is threatened. As French journalist Pierre Haski put it: “The state must not become a Ministry of Truth”.

It should be hoped that the French parliament will vote against this proposed law, not only to uphold fundamental principles of liberal democracy, but also to ensure that the world’s despots and authoritarian regimes do not cite the French example to justify their more sinister purposes.

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