Written by Claire Denoual and Claire Leonelli - Avocats à la Cour
Published on 24.06.2019 - Paperjam
Fake news" abounds, especially on social networks. It has a snowball effect regardless of borders and spares almost no one. Should we see this as a danger for our democracies?
False information was particularly talked about during the American election campaign of 2015 or the Brexit, with the consequences that we know. Closer to us, the Yellow Vests crisis is another telling example. According to an estimate published on March 13, 2019 by the international NGO Avaaz, fake news circulating in "gilets jaunes" groups on Facebook have been viewed a total of more than 105 million times between the months of November 2018 and March 2019.
For example, a video of Emmanuel Macron dancing to oriental music broadcast in November 2018 - at the height of the yellow vests crisis - with the caption "and while France is going badly", would count more than 5.7 million views, all social networks combined. However, this video would have actually been filmed a month earlier during the Francophonie summit in Armenia.
Luxembourg is obviously not spared by this phenomenon. Recently, several hundred posts on Facebook relayed a photo of Conchita Wurst with a man presented by a Ghanaian news site as Prime Minister Xavier Bettel and her husband. This was followed by a plethora of homophobic comments.
If disinformation/misinformation is common in politics, companies are not spared from the phenomenon. Thus, for example, in August 2017, an Internet user launched a fake news about the company Starbucks Coffee, which was widely taken up on social networks. In a few hours, thousands of tweets with the hashtag "#DreamerDay" would have spread on the internet with an image presenting a promotional event in favor of illegal immigrants :
This false information is undoubtedly likely to have a reputational impact on the company that is the victim if it does not react quickly and adequately.
What are the possible legal means to defend oneself when one is the target of false information?
There is no specific offence of "fake news" in Luxembourg.
Unlike France, for example, which punishes the crime of false news of a nature to disturb public order and has moreover just adopted, at the end of 2018, a law on the manipulation of information with the objective of fighting against attempts to influence the results of elections, Luxembourg does not intend to legislate on this issue. Noting the international nature of the internet, Luxembourg prefers to wait for a European approach on the subject.
However, Luxembourg law imposes on journalists a duty of accuracy and veracity with regard to the facts they communicate and the obligation to spontaneously rectify the fact concerned as soon as they become aware of the inaccuracy of their statements.
The victim of fake news is therefore not totally deprived of means of action.
In concrete terms, what can it do?
First of all, she can report the litigious content to the social network or the media concerned, asking it to remove the content if she can demonstrate that she has suffered a prejudice, in particular in case of defamation, insult, denigration, incitement to hatred and violence or obsessive harassment. In some cases, it can also request the publication of a right of reply. In such cases, the company must react quickly because most press offenses are time-barred after three months from the first publication of the litigious article.
In case of refusal or inaction of the publication medium concerned, it can ask the judge to delete the litigious information, to insert a correction or to issue a press release, and this in summary proceedings.
However, these judicial procedures are not always the most suitable for the speed of information circulation. It must be admitted that counter-communication operations are sometimes more effective from a practical point of view. The ideal is to set up a surveillance in terms of e-reputation, to define upstream a graduated response plan according to the harmfulness in terms of image and to distinguish between "bad buzz" and "good buzz". As the Swedish chancellor Axel Oxenstiern said in the 17th century, there are indeed cases where "it is better to be criticized than ignored".
The image above is under license CC BY 2.0
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