Decision

Décision n° 2018-773 DC du 20 December 2018

Law on the fight against the manipulation of information

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE on the law on the fight against the manipulation of information, no. 2018-773 DC, under the conditions set out in the second subparagraph of Article 61 of the Constitution. In attendance on 21 November 2018: Mr. Bruno RETAILLEAU, Mr. Serge BABARY, Mr. Philippe BAS, Mr. Jérôme BASCHER, Mr. Arnaud BAZIN, Ms. Martine BERTHET, Ms. Anne-Marie BERTRAND, Mr. Jean BIZET, Mr. François BONHOMME, Mr. Bernard BONNE, Mr. Gilbert BOUCHET, Ms. Céline BOULAY-ESPÉRONNIER, Mr. Yves BOULOUX, Mr. Jean-Marc BOYER, Mr. Max BRISSON, Ms. Marie-Thérèse BRUGUIÈRE, Mr. François-Noël BUFFET, Mr. François CALVET, Mr. Christian CAMBON, Ms. Agnès CANAYER, Mr. Jean-Noël CARDOUX, Ms. Anne CHAIN-LARCHÉ, Mr. Patrick CHAIZE, Mr. Pierre CHARON, Mr. Alain CHATILLON, Ms. Marie-Christine CHAUVIN, Mr. Guillaume CHEVROLLIER, Ms. Marta de CIDRAC, Mr. Pierre CUYPERS, Mr. Philippe DALLIER, Mr. René DANESI, Ms. Laure DARCOS, Mr. Mathieu DARNAUD, Mr. Marc-Philippe DAUBRESSE, Ms. Annie DELMONT-KOROPOULIS, Mr. Gérard DÉRIOT, Ms. Catherine DEROCHE, Ms. Jacky DEROMEDI, Ms. Chantal DESEYNE, Ms. Catherine DI FOLCO, Mr. Philippe DOMINATI, Mr. Alain DUFAUT, Mr. Laurent DUPLOMB, Ms. Nicole DURANTON, Mr. Jean-Paul ÉMORINE, Ms. Dominique ESTROSI-SASSONE, Mr. Michel FORISSIER, Mr. Bernard FOURNIER, Mr. Christophe-André FRASSA, Ms. Joëlle GARRIAUD-MAYLAM, Ms. Frédérique GERBAUD, Mr. Jordi GINESTA, Mr. Jean-Pierre GRAND, Mr. Daniel GREMILLET, Mr. François GROSDIDIER, Ms. Pascale GRUNY, Mr. Charles GUENÉ, Mr. Jean-Raymond HUGONET, Mr. Benoît HURÉ, Mr. Jean-François HUSSON, Ms. Corinne IMBERT, Ms. Muriel JOURDA, Mr. Guy-Dominique KENNEL, Mr. Marc LAMÉNIE, Ms. Élisabeth LAMURE, Ms. Florence LASSARADE, Mr. Daniel LAURENT, Ms. Christine LAVARDE, Mr. Antoine LEFÈVRE, Mr. Dominique de LEGGE, Mr. Ronan LE GLEUT, Mr. Jean-Pierre LELEUX, Mr. Henri LEROY, Ms. Vivette LOPEZ, Mr. Michel MAGRAS, Ms. Viviane MALET, Mr. Didier MANDELLI, Mr. Jean-François MAYET, Ms. Marie MERCIER, Mr. Sébastien MEURANT, Ms. Brigitte MICOULEAU, Mr. Alain MILON, Ms. Patricia MORHET-RICHAUD, Mr. Philippe MOUILLER, Mr. Louis-Jean de NICOLAY, Mr. Claude NOUGEIN, Mr. Olivier PACCAUD, Mr. Philippe PAUL, Mr. Philippe PEMEZEC, Mr. Stéphane PIEDNOIR, Mr. Jackie PIERRE, Mr. François PILLET, Mr. Rémy POINTEREAU, Mr. Ladislas PONIATOWSKI, Ms. Sophie PRIMAS, Mr. Christophe PRIOU, Ms. Catherine PROCACCIA, Ms. Frédérique PUISSAT, Ms. Isabelle RAIMOND-PAVERO, Mr. Michel RAISON, Mr. Jean-François RAPIN, Ms. Évelyne RENAUD-GARABEDIAN, Mr. Charles REVET, Mr. Hugues SAURY, Mr. Michel SAVIN, Mr. Alain SCHMITZ, Mr. Vincent SEGOUIN, Mr. Bruno SIDO, Mr. Jean SOL, Ms. Claudine THOMAS, Ms. Catherine TROENDLÉ, Mr. Michel VASPART, Mr. Jean-Pierre VOGEL, Ms. Annick BILLON, Mr. Vincent CAPO-CANELLAS, Mr. Alain CAZABONNE, Mr. Olivier CIGOLOTTI, Mr. Vincent DELAHAYE, Mr. Yves DÉTRAIGNE, Ms. Catherine FOURNIER, Ms. Françoise GATEL, Ms. Sylvie GOY-CHAVENT, Ms. Jocelyne GUIDEZ, Mr. Olivier HENNO, Mr. Loïc HERVÉ, Mr. Jean-Marie JANSSENS, Ms. Sophie JOISSAINS, Mr. Claude KERN, Mr. Laurent LAFON, Mr. Michel LAUGIER, Ms. Valérie LÉTARD, Mr. Jean-François LONGEOT, Mr. Pierre LOUAULT, Mr. Jean-Claude LUCHE, Mr. Hervé MARSEILLE, Mr. Jean-Marie MIZZON, Mr. Jean-Pierre MOGA, Ms. Catherine MORIN-DESAILLY, Mr. Jean-Paul PRINCE, Ms. Sonia de la PROVÔTÉ, Ms. Nadia SOLLOGOUB, Ms. Dominique VÉRIEN and Ms. Sylvie VERMEILLET, Senators.

The Constitutional Council was also asked to decide, on 29 November 2018, by: Mrs. Valérie RABAULT, Mr. Jean-Luc MÉLENCHON, Mr. André CHASSAIGNE, Mr. Joël AVIRAGNET, Ms. Éricka BAREIGTS, Ms. Marie-Noëlle BATTISTEL, Ms. Gisèle BIÉMOURET, Mr. Christophe BOUILLON, Mr. Jean-Louis BRICOUT, Mr. Luc CARVOUNAS, Mr. Alain DAVID, Ms. Laurence DUMONT, Mr. Olivier FAURE, Mr. Guillaume GAROT, Mr. David HABIB, Mr. Christian HUTIN, Mr. Régis JUANICO, Ms. Marietta KARAMANLI, Mr. Jérôme LAMBERT, Mr. Serge LETCHIMY, Ms. Josette MANIN, Ms. George PAU-LANGEVIN, Ms. Christine PIRES BEAUNE, Mr. Dominique POTIER, Mr. Joaquim PUEYO, Mr. Hervé SAULIGNAC, Ms. Sylvie TOLMONT, Ms. Cécile UNTERMAIER, Ms. Hélène VAINQUEUR-CHRISTOPHE, Mr. Boris VALLAUD, Ms. Michèle VICTORY, Ms. Clémentine AUTAIN, Mr. Ugo BERNALICIS, Mr. Éric COQUEREL, Mr. Alexis CORBIÈRE, Ms. Caroline FIAT, Mr. Bastien LACHAUD, Mr. Michel LARIVE, Ms. Danièle OBONO, Ms. Mathilde PANOT, Mr. Loïc PRUD'HOMME, Mr. Adrien QUATENNENS, Mr. Jean-Hugues RATENON, Ms. Muriel RESSIGUIER, Ms. Sabine RUBIN, Mr. François RUFFIN, Ms. Bénédicte TAURINE, Mr. Alain BRUNEEL, Ms. Marie-George BUFFET, Mr. Pierre DHARRÉVILLE, Mr. Jean-Paul DUFRÈGNE, Ms. Elsa FAUCILLON, Mr. Sébastien JUMEL, Mr. Jean-Paul LECOQ, Mr. Stéphane PEU, Mr. Fabien ROUSSEL, Mr. Hubert WULFRANC, Ms. Manuéla KÉCLARD-MONDÉSIR, Ms. Huguette BELLO, Mr. Moetaï BROTHERSON, Mr. Jean-Philippe NILOR and Mr. Gabriel SERVILLE, Delegates.

The Constitutional Council was also asked to decide, on 30 November 2018, by: Mr. Patrick KANNER, Mr. Maurice ANTISTE, Ms. Viviane ARTIGALAS, Mr. David ASSOULINE, Mr. Claude BÉRIT-DÉBAT, Mr. Joël BIGOT, Mr. Jacques BIGOT, Ms. Maryvonne BLONDIN, Ms. Nicole BONNEFOY, Mr. Yannick BOTREL, Mr. Martial BOURQUIN, Mr. Michel BOUTANT, Mr. Henri CABANEL, Mr. Thierry CARCENAC, Ms. Catherine CONCONNE, Ms. Hélène CONWAY-MOURET, Mr. Roland COURTEAU, Mr. Michel DAGBERT, Mr. Yves DAUDIGNY, Mr. Marc DAUNIS, Ms. Marie-Pierre de LA GONTRIE, Mr. Jérôme DURAIN, Mr. Alain DURAN, Mr. Vincent ÉBLÉ, Ms. Frédérique ESPAGNAC, Mr.Rémi FÉRAUD, Ms. Corinne FÉRET, Mr. Jean-Luc FICHET, Ms. Martine FILLEUL, Ms. Nadine GRELET-CERTENAIS, Ms. Annie GUILLEMOT, Ms. Laurence HARRIBEY, Mr. Jean-Michel HOULLEGATTE, Mr. Xavier IACOVELLI, Mr. Olivier JACQUIN, Mr. Éric JEANSANNETAS, Mr. Patrice JOLY, Mr. Bernard JOMIER, Ms. Gisèle JOURDA, Mr. Éric KERROUCHE, Mr. Bernard LALANDE, Mr. Jean-Yves LECONTE, Ms. Claudine LEPAGE, Mr. Jean-Jacques LOZACH, Ms. Monique LUBIN, Mr. Victorin LUREL, Mr. Philippe MADRELLE, Mr. Jacques-Bernard MAGNER, Mr. Christian MANABLE, Mr. Didier MARIE, Mr. Rachel MAZUIR, Ms. Michelle MEUNIER, Ms. Marie-Pierre MONIER, Ms. Marie-Françoise PÉROL-DUMONT, Ms. Angèle PRÉVILLE, Mr.Claude RAYNAL, Ms. Sylvie ROBERT, Mr. Gilbert ROGER, Ms. Laurence ROSSIGNOL, Mr. Jean-Pierre SUEUR, Mr. Simon SUTOUR, Ms. Sophie TAILLÉ-POLIAN, Mr. Rachid TEMAL, Mr. Jean-Claude TISSOT, Ms. Nelly TOCQUEVILLE, Mr. Jean-Marc TODESCHINI, Mr. Jean-Louis TOURENNE, Mr. André VALLINI, Ms. Sabine VAN HEGHE and Mr. Yannick VAUGRENARD, Senators.

In light of the following texts:

  • the Constitution;
  • Ordinance no. 58-1067 of 7 November 1958 laying down the Institutional Act on the Constitutional Council;
  • the organic law on the manipulation of information, definitively adopted by Parliament on 20 November 2018, as well as the decision of the Constitutional Council number 2018-774 DC of 20 December 2018;
  • the Commercial Code;
  • the Electoral Code;
  • the Code on Relations Between the Public and the Administration;
  • Law no. 86-1067 of 30 September 1986 on the freedom of communication;
    Having regard to the observations of the Government, registered on 13 December 2018;
    And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

  1. The applicant Delegates and Senators defer to the Constitutional Council on the Law on the fight against the manipulation of information. They contest its Article 1. The applicant Delegates and Senators of the third request for deliberations contest its Articles 5 and 6 and 8 and certain provisions of its Article 10. The Delegates also contest its Article 11.
  • On Article 1:
  1. Article 1 introduces in the Electoral Code Articles numbered L. 112, L. 163-1 and L. 163-2, applicable to legislative, senatorial and European elections, referendum procedures, and, applicable to the above-mentioned Organic Law on the manipulation of information, and on the election of the President of the Republic. Article L. 163-1 imposes on online platform operators transparency obligations related to promoting “information content related to debates regarding the public interest,” during the three months leading up to elections, Article L. 112 punishes the ignorance of these obligations. Article L. 163-2 establishes interlocutory proceedings for bringing an end to disseminating false information on online public communication services, during the same period, when it may have an impact on the honesty of elections.

. Regarding Articles L. 112 and L. 163-1 of the Electoral Code:

  1. The Senators having made the first request for deliberations argue that these provisions infringe on the principle of offences and penalties being defined by law, due to its lack of precision on the indication of “information content related to debates regarding the public interest,” which determines the scope of the obligation which ignorance is punished. Given the large scope of this notion, the transparency obligations which online platform operators are imposed with would also result in an unconstitutional infringement on the freedom of enterprise.

  2. According to Article 8 of the Declaration of Human and Civic Rights of 1789: "The Law must prescribe only the punishments that are strictly and evidently necessary; and no one may be punished except by virtue of a Law drawn up and promulgated before the offence is committed, and legally applied.". Pursuant to Article 34 of the Constitution: "Statutes shall determine the rules concerning... the determination of crimes and offences as well as their applicable penalties". Pursuant to Article 34 of the Constitution, as well as the principle of offences and penalties being defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness.

  3. The legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by the public interest, provided that this does not result in harm that is disproportionate to the objective pursued.

  4. Article L. 163-1 imposes on online platform operators which activity exceeds a determined threshold regarding the number of connections on the French territory to provide the user with true, clear and transparent information on certain subjects. On the one hand, this information must pertain to the identity of natural or legal persons who remunerate this platform in return for promoting information content related to debates regarding public interest, and on the other hand, it must pertain to the amount of such remuneration, if it is above a threshold set by decree, and, finally, to the use of the the users' personal data, within the framework of this promotion. This information is notably aggregated in a registry made available to the public and regularly updated during the period in question.

  5. Article L. 112 specifically punishes the violation of these provisions with one year imprisonment and a fine of €75,000.

  6. Firstly, the obligations thus imposed on online platform operators are only required during the three-month period preceding the first day of the month when general elections or a referendum are held and up to the date of the election and only in terms of the public interest related to the enlightened information of citizens during the electoral period and to the honesty of elections. It follows that the information content related to debates regarding the public interest established in the contested provisions is that which is related to an electoral campaign. Therefore, referring to this indication does not infringe on the principle of offences and penalties being defined by law.

  7. Secondly, the obligations imposed on online platform operators is limited to the period of the electoral campaign and only relates to those whose activity exceeds a certain threshold. It is limited to imposing on them the duty to provide true, clear and transparent information to the individuals for whom they have promoted, in exchange for payment, certain information content related to the electoral campaign. It seeks to provide citizens with the means to assess the value or the scope of the information thus promoted and therefore contributes to the honesty of the electoral debate. Given the objective of public interest sought as well as the limited nature of the obligation imposed on online platform operators, the contested provisions do not disproportionately infringe on the freedom of enterprise.

  8. It follows from the foregoing that Articles L. 112 and L. 163-1 of the Electoral Code, which do not infringe on any other constitutional requirement, should be declared constitutional.

. Regarding Article L. 163-2 of the Electoral Code:

  1. The applicant Senators and Delegates argue that these provisions infringe on the freedom of expression in a way that is unnecessary insofar as several legislative provisions already allow the objective sought by the legislature to be reached. According to them, given the risks of instrumentalisation regarding this course of action, this violation is not appropriate in terms of the difficulties for the judge to decide within a time frame of 48 hours and to assess the risk of altering the honesty of an election which has not taken place yet. Such violation is also not proportionate, given the particular importance of the freedom of expression in political debate and electoral campaigns. The Senators having made the first request for deliberations point out that the contested provisions may lead to restricting the dissemination of statements which effect on the elections is uncertain or for which it has not been demonstrated that they have the deliberate intent to harm the honesty of elections. They, along with the applicant Delegates, deem that because of the imprecision of the legislature's criteria, dramatic statements or those which are simply wrong or erroneous, without themselves constituting false information, may be subject to these interlocutory proceedings.

  2. The Senators having made the first request for deliberations deem that, by not defining measures likely to be decided on by the judge sitting for urgent matters to bring an end to spreading contested statements, the legislature failed to remain within the scope of its authority. Likewise, according to the Senators having made the third request for deliberations, along with the applicant Delegates, given the imprecision of the criteria to define false information and the harm related to the honesty of elections.

  3. Finally, the applicant Delegates deem that the interlocutory proceedings infringe on the rights of defence and on the right to a fair trial. The Senators having made the third request for deliberations underline that the time frame of 48 hours granted to the judge sitting for urgent matters and the appeals court to decide is contrary to the objective of the constitutional value of the proper administration of justice and the guarantee of rights.

  4. Article 11 of the Declaration of Human and Civic Rights of 1789 provides that: "The free communication of ideas and of opinions is one of the most precious rights of man: any citizen may therefore speak, write, and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law". Article 34 of the Constitution provides that: "Statutes determine the rules concerning ... civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". Based on this, the legislature has the right to establish the rules concerning the right to exercise free communication and the right to speak, write and print. It also has the right, in this regard, to institute provisions to bring an end to the abuse of the right to exercise freedom of expression and communication which infringe on public order and the rights of others.

  5. However, freedom of expression and communication is all the more precious in that the exercise thereof is a condition of democracy and one of the guarantees that other rights and freedoms are respected. This is also true, given the current communication methods, regarding it being carried out through online public communication services, with regard to the general development of these services as well as their importance in participating in democratic life and expressing ideas and opinions. It follows that infringement on the exercise of this freedom must be necessary, suitable and proportional to the objective sought.

  6. According to the third subparagraph of Article 3 of the Constitution, “Suffrage may be direct or indirect as provided for by the Constitution. It shall always be universal, equal and secret.” From this follows the principle of the honesty of elections.

  7. It is the legislature's responsibility to balance the constitutional principle of the honesty of elections with the constitutional freedom of expression and communication.

  8. Firstly, by establishing interlocutory proceedings to stop the spread of some false information likely to harm the honesty of elections, the legislature sought to stop the risk of citizens being tricked or manipulated in exercising their vote by mass dissemination of such information on online public communication services. Thus, it sought to ensure the clarity of electoral debate and compliance with the principle of the honesty of elections.

  9. Secondly, the legislature limited applying this procedure to the period of electoral campaigns beginning three months before the first day of the month preceding general elections or a referendum and ending on the date of the round of elections or when these elections are held.

  10. Thirdly, the interlocutory proceedings only relate to public content on online public communication services. However, these services lend themselves more easily to massive and coordinated manipulations due to their multitude and the particular ways of disseminating their content.

  11. Fourthly, the legislature strictly defined the information which may be subject to interlocutory proceedings. On the one hand, these proceedings are only intended for incorrect or misleading allegations or accusations which have the effect of altering the honesty of the upcoming elections. These allegations or accusations do not relate to opinions, parodies, partial inaccuracies or simple exaggerations. They are those for which it is possible to objectively demonstrate falseness. On the other hand, only three cumulative conditions for spreading such allegations or accusations may be questioned: they must be artificial or computerized, deliberate and spread by mass distribution.

  12. However, the freedom of expression has a particular importance in political debate and during electoral campaigns. It guarantees both each person's information and the defence of all opinions but also defence against the consequences of abuses committed on its merits and allowing for responding to and denouncing them.

  13. Therefore, given the consequences that proceedings may have the effect of stopping the spread of certain information content, the allegations or accusations in question can only justify such a measure if the incorrect or misleading nature is apparent, without infringing on the freedom of expression and communication. Likewise, for the risk of having an effect on the honesty of elections, which must also be apparent.

  14. Fifthly, if the applicants contest the risk of instrumentalisation of the proceedings, such a possibility is not sufficient to undermine the constitutionality of this.

  15. Lastly, by allowing the judge sitting for urgent matters to order all proportioned and necessary measures to bring an end to false content being spread, the legislature required the judge to make a decision on those that infringe the least on the freedom of expression and communication.

  16. It follows from the foregoing that, subject to the reservations established in Paragraph 23, Article L. 163-2 of the Electoral Code, which is not undermined by negative incompetence - meaning the legislature erroneously undermining and delegating its own powers to another - does not infringe on the freedom of expression and communication in a way that is not necessary, appropriate and proportionate. It also does not infringe on the rights of defence, the right to a fair trial, the objective of the constitutional value of the proper administration of justice and the guarantee of rights, nor on any other constitutional requirement. Under these same reservations, it should be deemed constitutional.

  • On Article 5:
  1. Article 5 completes Paragraph I with two subparagraphs of Article 33-1 of the Law of 30 September 1986 mentioned herein above.

  2. The penultimate subparagraph of Paragraph I, as completed, allows the Conseil Supérieur de l'Audiovisuel [the French High Council Regulating Audiovisual Media] to refuse to enter into an agreement which purposes are to broadcast a radio or television service that does not use the frequencies assigned by the Council if broadcasting this service includes a serious risk of infringement on the dignity of the human person, the liberties and the property of others, the pluralist nature of the expression of thought and opinion, the protection of children and adolescents, maintaining public order, the requirements of national defence or the fundamental interests of the Nation, which is the regular functioning of its institutions. Likewise, when such service is disseminated, owing to its very nature, it constitutes a violation of the laws in force.

  3. The last subparagraph of Paragraph I of Article 33-1, as completed, provides that when an agreement is sought by a legal person controlled by a foreign State, under the meaning of Article L. 233-3 of the Commercial Code, or placed under the influence of this State, the Council may, in order to assess the request, take into account the content that the applicant, its subsidiaries, the legal person which controls it or the subsidiaries of the latter electronically publish on other public electronic communication services.

  4. The applicant Delegates hold that the provisions of the penultimate subparagraph of Paragraph I of Article 33-1 violate the freedom of expression and communication by creating a system of prior administrative authorization. It also is undermined by negative incompetence and infringes on the principle of offences and penalties being defined by law given the imprecision of the indications of “maintaining public order,” of “the fundamental interests of the Nation” and disseminating a service that “owing to its very nature, constitutes a violation of the laws in force.” According to these Delegates, denying the disputed agreement constitutes a sanction and, in the framework of this process, not having established “indicating the claims of the individuals in question,” or the audi alteram partem rule, or the possibility of adjusting the sanction, or recourse to full remedy actions against this sanction, or appeal with suspensory effect, the legislature infringed on the rights of defence, the right to effective legal remedy and the principle of the individualization of penalties.

  5. These same Delegates also consider that treating legal persons controlled by a foreign State or placed under the influence of such a State and other legal persons differently, the provisions of the last subparagraph of Paragraph I of Article 33-1 infringe on the principle of equality before the law. Finally, along with the Senators having made the third request for deliberations, these Delegates claim that this subparagraph is undermined by negative incompetence due to the imprecision of the indication of a legal person “placed under the influence” of a foreign State.

. Regarding the penultimate subparagraph of Paragraph I of Article 33-1 of the Law of 30 September 1986:

  1. Firstly, according to Article 34 of the Constitution, it is the legislature's duty to determine the rules related to the fundamental guarantees granted to citizens for the exercise of their civil liberties, in terms of managing technological and economic necessities, to balance the exercise of the freedom of communication as established in Article 11 of the 1789 Declaration with, on the one hand, the inherent constraints of audiovisual communication and, on the other hand, the objectives of the constitutional value of maintaining public order, respect of the liberties and the property of others and preserving the pluralist nature of socio-cultural opinions to which these communication methods, due to their influence, may cause harm. In order to carry out these objectives of constitutional value, it is permissible for the legislature to subject different categories of audiovisual communication services to a system of prior administrative authorization.

  2. On the one hand, by allowing the Conseil Supérieur de l'Audiovisuel to refuse a request for an agreement for one of the reasons established in Paragraph 28, the legislature sought to prohibit any audiovisual or radio broadcast of content having a serious risk causing harm to public order, to the liberties and the property of others and to the pluralist nature of socio-cultural opinions.

  3. On the other hand, the reasons related to “maintaining public order” and the serious risk of causing harm to “the fundamental interests of the Nation,” indications commonly used by the legislature and applied by judges, do not contain any imprecision. Additionally, by allowing the Conseil Supérieur de l'Audiovisuel to refuse an agreement when a broadcast service “owing to its very nature, constitutes a violation of the laws in force,” the legislature sought to avoid the authorization of a service which thematic programming is, in principle, illegal or promotes an illegal activity.

  4. It follows from the foregoing that the legislature, which has not gone outside of its scope of authority, carried out a balance between the above-mentioned constitutional requirements and the freedom of expression and communication.

  5. Secondly, the Conseil Supérieur de l'Audiovisuel's decision to refuse to enter into an agreement may be challenged before the administrative court. Thus, the right to effective legal remedy has not been infringed.

  6. Secondly, the refusal of a contested agreement not constituting a sanction that has a punitive nature, the claims of infringement on the principle of offences and penalties being defined by law and the individualization of penalties of must be set aside.

  7. It follows from the foregoing that the penultimate subparagraph of Paragraph I of Article 33-1 of the Law of 30 September 1986, which does not infringe upon the rights of defence or the right to legal remedy, or upon any other constitutional requirement, is constitutional.

. Regarding the last subparagraph of Paragraph I:

  1. Firstly, according to Article 6 of the 1789 Declaration, the law "must be the same for all, whether it protects or punishes". The principle of equality does not prevent the legislature from regulating different situations in different ways, nor does it depart from equality for reasons of public interest, provided that in both cases, the resulting difference in treatment is directly related to the objectives of the law establishing it.

  2. The last subparagraph of Paragraph I of Article 33-1 treats legal persons controlled by a foreign State or placed under the influence of such a State and other legal persons differently, when allowing the Conseil Supérieur de l'Audiovisuel to refuse to enter into an agreement with these individuals by taking into account the content published on other electronic communication services for the public by such individuals or by companies to which they are related.

  3. By adopting these provisions, the legislature sought to facilitate preventing any breach of public order arising from radio or television broadcast services controlled by or placed under the influence of a foreign State. Thus, it has taken into account the particular seriousness of an attempt at destabilization coming from media directly or indirectly controlled by a foreign power. Therefore, the claim of infringement on the principle of equality before the law should be set aside.

  4. Secondly, by providing that the provisions of the last subparagraph of Paragraph I apply when the legal person is placed under the influence of a foreign State, and not only when the person is controlled by such a State under the meaning of Article L. 233-3 of the Commercial Code, the legislature sought that these provisions apply to any legal person upon which a foreign State may impose its decisions, in law or in fact. It has not gone outside of its scope of authority.

  5. It follows from the foregoing that the last subparagraph of Paragraph I of Article 33-1 of the Law of 30 September 1986, which does not infringe upon any other constitutional requirement, is constitutional.

  • On Article 6:
  1. Article 6 inserts a new Article 33-1-1 in the Law of 30 September 1986. This Article grants the Conseil Supérieur de l'Audiovisuel the power to suspend the broadcast of a radio or television service subject to an agreement entered into with a legal person controlled by a foreign State or placed under the influence of this State, under the meaning of Article L. 233-3 of the Commercial Code, in the event that they disseminate false information during an electoral period.

  2. The applicant Delegates claim that these provisions infringe on the freedom of expression and communication in that, on the one hand, in the event of follow-up electoral voting rounds, the suspension decision may be extended for a long time period and, on the other hand, that the indication of “false information” allows taking into account an error, an approximation or information that cannot be verified due to the journalists' protection of sources.

  3. They also argue that it infringes on the principle of equality before the law in that the legislature, without justification, treated legal persons placed under the control or under the influence of a different State and other legal persons differently.

  4. Finally, they claim that, by limiting the time frame granted to the person having entered into an agreement to 48 hours to present observations before the Conseil Supérieur de l'Audiovisuel, the legislature violated the rights of defence. Likewise, the lack of recourse to full remedy actions and appeal with suspensory effect against this decision infringe on the right to effective legal remedy. Finally, the principle of the individualization of penalties is also infringed in that the suspension decision cannot be varied.

  5. The Senators having made the third request for deliberations argue that, given the imprecision regarding the conditions under which suspension power is subject and the absence of sufficient procedural guarantees, the contested provisions infringe on the freedom of expression and communication.

. Regarding the claim of infringement on the freedom of expression and communication:

  1. Firstly, by adopting the contested provisions, the legislature sought to fight against the risk of citizens being deceived or manipulated in exercising their vote by the dissemination of false information on radio and television services controlled by a foreign State or placed under its influence. It therefore sought to ensure clarity in electoral debates and respect for the principle of the honesty of elections.

  2. Secondly, on the one hand, suspension power may only occur during the three months preceding the first day of the month of the election of the President of the Republic, general elections for Delegates, and elections for Senators, which excludes special elections, elections of representatives to the European Parliament and referendum procedures, and terminating on the date of the round of elections or when these elections are held.

  3. Furthermore, it can only be exercised if the radio or television service disseminates “deliberately, false information that has the effect of influencing the honesty of the elections.” False information is understood as including incorrect or misleading allegations or accusations of facts such as defined in Paragraph 21. Additionally, given the consequences of a measure that would bring an end to the broadcast of a radio or television service during an electoral period, the allegations or accusations in question cannot justify such a decision if their incorrect or misleading nature or if the risk of having an effect on the honesty of elections is not apparent, without infringing on the freedom of expression and communication.

  4. On the other hand, should the suspension procedure be initiated, the Conseil Supérieur de l'Audiovisuel would notify the claims that may justify the suspension to the individuals in question, who have a time frame of 48 hours to submit their observations. The possibility offered in section 1° of Article L. 121-2 of the Code on Relations Between the Public and the Administration to derogate from applying these guarantees in the event of an emergency cannot be implemented when this emergency is incompatible with the above-mentioned timeframe of 48 hours. Furthermore, the suspension decision is reasoned and notified to the individuals in question, who may contest it before the administrative court.

  5. It follows from the foregoing that, subject to the reservations established in Paragraph 51, Article 33-1-1 of the Law of 30 September 1986 does not infringe on the freedom of expression and communication.

. Regarding the other claims:

  1. Firstly, on the grounds established in Paragraph 41, the difference in treatment instituted by the contested provisions between legal persons controlled by a foreign State or placed under the influence of such a State and others does not conflict with the principle of equality before the law.

  2. Secondly, given that the challenged suspension decision, issued for the purposes of preventing any alteration to the honesty of elections, does not constitute a sanction having a punitive nature, the claim under which the legislature infringes on the rights of defence by only establishing a time frame of 48 hours to submit their observations cannot but be set aside. Likewise, regarding the claim of infringement on the principle of individualisation of penalties.

  3. It follows from the foregoing that Article 33-1-1 of the Law of 30 September 1986, which does not infringe on effective legal remedy nor on any other constitutional requirement, subject to the reservations established in Paragraph 51, should be declared constitutional.

  • On Article 8:
  1. Article 8 restores an Article 42-6 in the Law of 30 September 1986, applicable to radio and television services distributed by networks which do not use frequencies assigned by the Conseil Supérieur de l'Audiovisuel and which specific obligations are defined in an agreement entered into with the latter. The first sentence of this Article 42-6 allows the Conseil Supérieur de l'Audiovisuel, after the issuing of a formal notice, to unilaterally terminate this agreement, when it has been entered into with a legal person controlled by a foreign State or place under the influence of this State, on the grounds that such radio or television service infringes on the fundamental interests of the Nation, “including the regular functioning of its institutions, specifically by disseminating false information.” The second sentence of Article 42-6 allows the Conseil Supérieur de l'Audiovisuel, to assess this breach, to take into account the content published on other electronic online public communication services by the company with which it has entered into the agreement, by its subsidiaries, by the legal person controlling it or by the subsidiaries of the latter, without having to base its decision on these sole elements.

  2. According to the applicant Delegates, by aiming breaches to the regular functioning of institutions, specifically by false information being disseminated, the legislature included imprecise terms that may be subject to broad interpretation, regardless of the freedom of expression and communication. Furthermore, the Conseil Supérieur de l'Audiovisuel may terminate the agreement without taking into account the behaviour of the person after formal notice has been issued and without having first initiated audi alteram partem proceedings. The right to effective legal remedy is also infringed, due to the lack of recourse to full remedy actions and appeal with suspensory effect. The result of this is a violation of the guarantee of rights. Finally, by only applying to agreements entered into with a company controlled or influenced by a foreign State, and not those entered into with other companies, these provisions infringe on the principle of equality before the law.

  3. For the same reasons as those put forth by the applicant Delegates, the Senators having made the third request for deliberations contest this as a violation of the freedom of expression and communication. Finally, the possibility to terminate the contract based on the actions of persons other than the company sanctioned violates the principle that penalties must be specific to the offender.

. Regarding the claim of infringement on the freedom of expression and communication:

  1. Firstly, the contested provisions seek to sanction the infringements to the fundamental interests of the Nation made by a person controlled or influenced by a foreign State, committed through radio or television services, specifically the dissemination of false information. In so doing, these provisions implement the constitutional requirements inherent to safeguarding the fundamental interests of the Nation.

  2. Secondly, the term of false information, which must be understood as including incorrect or misleading allegations or accusations of facts such as defined in 21, does not create any uncertainty on the legality of behaviour that may fall under the contested sanction. Likewise for the notion of infringement to the regular functioning of institutions, which has no equivocal nature.

  3. Consequently, the claim of infringement on the freedom of expression and communication should be set aside.

. Regarding the claim of infringement on the principle of equality before the law:

  1. On the grounds established in Paragraph 41, the sanction instituted by the contested provisions only being pronounced against a legal person controlled by a foreign State or placed under the influence of this State does not infringe on the principle of equality before the law.

. Regarding the claim of the infringement of Article 16 of the 1789 Declaration:

  1. According to Article 16 of the 1789 Declaration: “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution”. This provision guarantees the rights of individuals in question to effective legal remedy, the right to a fair trial, as well as the principle of audi alteram partem proceedings.

  2. On the one hand, by allowing the Conseil Supérieur de l'Audiovisuel “after formal notice is issued, to issue the sanction of unilaterally terminate the agreement,” the legislature intended that such a sanction may only be initiated if the person subject to the formal notice has not complied with it. On the other hand, this sanction is initiated at the end of the audi alteram partem proceedings as defined in Article 42-7 of the Law of 30 September 1986, modified in these terms by Article 9 of the contested law. Finally, the termination of the agreement may be challenged before the court hearing a case of misuse of power.

  3. Consequently, the claims of infringement on Article 16 of the Declaration of 1789 should be set aside.

. Regarding the claim of infringement on the principle according to which one is only punishable for their own actions:

  1. Article 8 of the 1789 Declaration provides that: "The law must prescribe only the punishments that are strictly and clearly necessary, and no one may be punished except by virtue of a Law drawn up and promulgated before the offence is committed, and legally applied." According to its Article 9, every person is “presumed innocent until he has been declared guilty.” It follows from these Articles that one is only punishable for their own actions. This principle applies not only to punishment ordered by the criminal courts but also to any sanction of a punitive nature.

  2. Applied outside of criminal law, the principle according to which one is only punishable for their own actions may be subject to being adapted, when this is justified by the nature of the sanction and by the purpose for which it is sought and that it is proportional to this purpose.

  3. Firstly, by authorizing the Conseil Supérieur de l'Audiovisuel, as the basis for their decision to terminate an agreement, to take into account content disseminated on services other than the one subject to the agreement in question or by individuals other than those who signed this agreement, the legislature sought to allow the claim of infringement to the fundamental interests of the Nation done by the service involved in the sanction proceedings to be established through a body of corroborating evidence showing the existence of a strategy involving multiple companies related to these services and implemented by a foreign State.

  4. Secondly, on the one hand, the contested provisions only allow taking into account the content of other public electronic communication services when the latter are published by a subsidiary of the company with which an agreement has been entered into, by the legal person controlling it or by the subsidiaries of the latter. In this regard, these companies share a common interest in such a way to presume a coordinated effort between them. On the other hand, these provisions exclude that the decision to terminate the agreement may be based only on this content.

  5. Therefore, the second sentence of Article 42-6 of the Law of 30 September 1986, given the strategies that may be used by foreign States, do not disregard the principle according to which one is only punishable for their own actions.

  6. It follows from the foregoing that Article 42-6 of the contested Law, which does not infringe upon any other constitutional requirement, should be deemed constitutional.

  • On certain provisions of Article 10:
  1. Section 2° of Paragraph I of Article 10 inserts a second subparagraph in Article 42-10 of the Law of 30 September 1986 allowing the President of the Conseil Supérieur de l'Audiovisuel to go before the court to order a satellite network operator or a service provider to stop the broadcast or dissemination of an audiovisual communication service under France's jurisdiction and controlled by a foreign State or placed under its influence, if this service causes harm to the fundamental interests of the Nation, “notably to the regular functioning of its institutions, specifically by disseminating false information.” These provisions specify that, to assess this harm, the courts may take into account content published by the publisher of the service in question, its subsidiaries, the legal person controlling it or the subsidiaries of the latter, on other public electronic communication services.

  2. The applicant Delegates and the Senators having made the third request for deliberations blame these provisions for disproportionally infringing on the freedom of communication and expression, specifically based on the imprecision of the indication of the legal person “placed under the influence” of a foreign State and “false information.” The Delegates having made the second request for deliberations also blame these provisions for only applying to audiovisual communications services controlled by a foreign State or placed under its influence, thus disregarding the principle of equality before the law. Finally, they hold that the contested provisions infringe on the freedom of enterprise, the principle of offences and penalties being defined by law and the principle that penalties must be specific to the offender, the objective of the constitutional value of the pluralist nature of thoughts and opinions and that of the accessibility and comprehensibility of the law.

. Regarding the claim of infringement on the freedom of expression and communication:

  1. Firstly, the contested provisions seek to prevent and bring an end to breaches to the fundamental interests of the Nation committed by an audiovisual communication service controlled or influenced by a foreign State, specifically by disseminating false information. In so doing, these provisions implement the constitutional requirements inherent to safeguarding the fundamental interests of the Nation.

  2. Secondly, the term of false information must be understood as including incorrect or misleading allegations or accusations of facts such as defined in Paragraph 20. The indication of a legal person “placed under the influence” of a foreign State is also understood such as it is specified in Paragraph 42. These indications do not create any uncertainty on the recourse conditions to the contested procedure.

  3. Thirdly, the order to bring an end to the broadcast is issued by the presiding judge of Administrative Claims of the Conseil d'État according to the interlocutory proceedings established in Article 42-10 of the Law of 30 September 1986.

  4. Lastly, if, to assess the seriousness of the infringement inflicted by the publisher of the service in question to the fundamental interests of the Nation, the court may take into account, as the case may be, the publisher's content, its subsidiaries, the legal person controlling it or the subsidiaries of this latter published on other public electronic communication services, the measure to bring an end to the broadcast is based on it being established that the publisher of the service himself made a breach.

  5. Consequently, the claim of infringement on grounds of the freedom of expression and communication should be set aside.

. Regarding the claim of infringement on the principle of equality before the law:

  1. For the reasons set out in Paragraph 41, the fact that a measure bringing an end to a broadcast may only be ordered for the reasons established in the contested provisions against the publisher of a service controlled by a foreign State or placed under its influence does not infringe on the principle of equality before the law.

. Regarding the claims of infringement on the requirements resulting from Articles 8 and 9 of the 1789 Declaration:

  1. The contested provisions do not constitute a sanction that is a punishment. Consequently, the claims of infringement on the principle that offences and penalties must be defined by law and on the principle according to which one is only punishable for their own actions are inapplicable.

  2. It follows from the foregoing that the second subparagraph of Article 42-10 of the Law of 30 September 1986, which does not infringe either on the objective of the constitutional value of accessibility and comprehensibility of the law or, in any case, that of the pluralist nature of thoughts and opinions, or any other constitutional requirement, should be deemed constitutional.

  • On Article 11:
  1. Article 11 makes online platform operators as described in Article L. 163-1 of the Electoral Code responsible for measures to fight against spreading false information that may disrupt public order or have an effect on the honesty of elections. They must put in place mechanisms allowing their users to indicate such information. They must also implement additional measures specifically related to the transparency of algorithms and to put a damper on accounts propagating mass false information.

  2. The applicant Delegates hold that by allowing online platform operators the ability to assess the false nature of information distributed on their platforms, the contested provisions risk leading to them accepting a broad scope of the indication of “false information,” so that they will not be accused of breaching their obligations, at the expense of the freedom of expression and communication. They also claim that these provisions infringe on the freedom of enterprise, on the “right to information” as well as on the objectives of the constitutional value of accessibility and comprehensibility of the law and the pluralist nature of thoughts and opinions.

. Regarding the claim of infringement on the freedom of expression and communication:

  1. Firstly, by adopting the contested provisions, the legislature sought to prevent harm to public order and ensure clarity in electoral debates and respect for the principle of the honesty of elections.

  2. Secondly, the indication of false information must be understood as including incorrect or misleading allegations or accusations of facts such as defined in Paragraph 21. It does not create uncertainty regarding the scope of the obligations instituted by the contested provisions.

  3. Lastly, among the measures likely to be implemented to fight against the dissemination of false information are included measures regarding information, transparency and indicating contentious content which, in itself, do not infringe on the freedom of expression and communication. In any case, it shall be the responsibility of the court,when asked to decide on a dispute regarding the other additional measures that may be adopted for the same purpose, specifically those seeking to put a damper on accounts propagating mass false information, to assess, in each case, if they are necessary, suitable and proportional to the objective sought.

  4. Consequently, the claim of infringement on the freedom of expression and communication should be set aside.

. Regarding the claim of infringement on the freedom of enterprise:

  1. The contested provisions are limited to imposing on online platform operators, on the one hand, according to the methods that they determine, to implement accessible and visible mechanisms allowing users to indicate false information, as well as additional measures such as the transparency of their algorithms and to put a damper on accounts propagating mass false information, On the other hand, they require them to make these measures public as well as the resources allocated to them. By adopting these provisions, the legislature has not disproportionately infringed on the freedom of enterprise in terms of the objectives mentioned in Paragraph 85.

  2. It follows from the foregoing, that Article 11, which also does not infringe on the objective of the constitutional value of accessibility and comprehensibility of the law or, in any event, that of the pluralist nature of thoughts and opinions, or any other constitutional requirement, should be deemed constitutional.

  • On the other provisions:
  1. The Constitutional Council raised no other issues regarding conformity with the Constitution and has no ruling on the constitutionality of any provision other than those brought up in this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - The following provisions are constitutional:

  • subject to the reservations established in Paragraph 23, Article L. 163-2 of the Electoral Code, as amended by Article 1 of the Law related to the fight against the manipulation of information;
  • subject to the reservations established in Paragraph 51, Article 33-1-1 of Law no. 86-1067 of 30 September 1986 related to the freedom of communication, as amended by Article 6 of the contested law.

Article 2. - The following provisions are constitutional:

  • Articles L. 112 and L. 163-1 of the Electoral Code, as amended by Article 1 of the contested law;
  • the last two subparagraphs of Paragraph I of Article 33-1 of Law no. 86-1067 of 30 September 1986 related to the freedom of communication, as amended by Article 5 of the contested law;
  • Article 42-6 of Law no. 86-1067 of 30 September 1986 related to the freedom of communication, as amended by Article 8 of the contested law;
  • the second subparagraph of Article 42-10 of Law no. 86-1067 of 30 September 1986 related to the freedom of communication, as amended by Article 10 of the contested law;
  • Article 11 of the contested law.

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 20 December 2018, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 20 December 2018.

À voir aussi sur le site : Communiqué de presse, Commentaire, Dossier documentaire, Législation consolidée, Texte adopté, Liste des contributions extérieures, Saisine par 60 sénateurs - 1, Saisine par 60 députés, Saisine par 60 sénateurs - 2, Observations du Gouvernement, Dossier législatif AN, Dossier législatif Sénat, Références doctrinales.