Pour lire le document de travail en français, cliquez sur le drapeau français
Without any request, on his or her newsfeed, those who surfs on the social network built by Facebook, has found on 23 of March 2020, in the morning, the following message :
« X (prénom de l'internaute), agissez maintenant pour ralentir la propagation du coronavirus (COVID-19) Retrouvez les actualités des autorités sanitaires et institutions publiques, des conseils pour ralentir la propagation du coronavirus et des ressources pour vous et vos proches dans le Centre d’information sur le coronavirus (COVID-19)" ("X (user's name), act now to slow down the spread of the Coronavirus (COVID-19). Find the health authorities and public institutions' news, advices to slow down the spread of the Coronavirus for you and your entourage in the Information Center about Coronavirus (COVID-19) »).
This corresponds to the more general declaration done the same day by Kang-Xing Jin, director of Health at Facebook, who declares : "In response to the coronavirus outbreak, Facebook is supporting the global public health community’s work to keep people safe and informed. Since the World Health Organization declared the coronavirus a public health emergency in January, we’ve taken steps to make sure everyone has access to accurate information, stop misinformation and harmful content, and support global health experts, local governments, businesses and communities.".
Thanks, Facebook to indicate how to do ; by the way, thanks to having invited me to do it. By the way, is it really an « invitation » ? Since the expression is « act now ». Just miss the exclamation point, and the pointed finger of Uncle Sam for « war effort »
If in Law, we can consider « invitation », it would be not to the "invitation" that in the past Bank of France did to shareholders banks to refinance a bank which risks to be soon into difficulties that we could consider, invitation from which the invited cannot really escape. No, obviously no, it is just the same message that you and me can write on our Facebook pages to tell similar things about the same purpose ! But, Facebook would be, like you and me, editor of contents ?
Questions and difficulties which encourage to proceed to the legal analysis to know under which title Facebook posted such a message.
The first hypothesis is that this firm has acted spontaneously, following its « Corporate Social Responsibility » (I) If it is the right qualification, with regards to the content of the message, legal consequences are important because this firm, without generalizing to others, by the expression of its care of common good, shows, by transitivity, that it is an editor.
The second hypothesis starts from the observation that Facebook is a « crucial digital operator ». In this perspective, the firm is constraint to Compliance Law (II). It is the reason why, it is constraint by specific obligations, that excludes the spontaneous message emission qualification. If it is the right qualification, with regards to the content of the message, legal consequences are also important and of a totally different nature. Indeed, the qualification leads to develop the relation between the obligation to fight against fake news and malicious websites towards those of redirecting towards public websites, benefiting for the operator of a reliability presumption.
Read the developments below.
Rhetoric of patriotic requisition, whose the image was taken back a lot then, either to appropriate better its efficiency outside war context, or to criticize it, principally to laugh at it.
I- FIRST HYPOTHESIS : SPONTANEOUS ACTION FROM FACEBOOK, BECOMING EDITOR
Two elements encourage to think like that, but the impossible neutrality of a message may lead a judge to requalify such an emission.
1. Facebook : a firm acting through « Corporate Social Responsibility »
Within the health crisis which shakes the whole planet
We can consider that Facebook did the same. Not having physicial good's manufacturing activity but having the power to contact a lot of people, this very particular firm put at the service of the community its work tool by relaying practical informations, like others made health products.
The analogy is very convincing because masks, hydroalcoholic gel and practical advices are at the same level to fight against the virus' spread. Information stops the spread as the disinfection does.
2. A message which wants to be « neutral »
The message in question is divided in two parts. The first part ask to the internet user to act against virus' spread. This is neutral because we can consider that the firm, not only cannot issue the inverse speech, that comes under Criminal Law
It results from this two first elements that Facebook has acted to help, that it was not constraint to do it and that no legal consequence is attached to it.
3. The impossibility of a neutral message and the perspective of a global requalification in « editor »
The difficulty comes from the fact that here, the emission of a « neutral message » is not possible
For example, the message sent by Facebook at Christmas or for the 14th of July (French National Day). They are messages that wish to everybody a « merry christmas » or a « merry 14th of July ». They may be push us to celebrate these events but these messages are different because they do not take the imperative form : we do not read « celebrate » like we read « act » here.
This corresponds to the fact that celebrating these moments are not an obligation, even a moral one, for the internet user, while do not spreading a virus is an obligation.
We can also bring face to face the current message to the one sent by Facebook to ask the internet users to vote at the elections. This kind of message is more ambiguous because it include an advice about a behavior : « go to vote ». But the vote, if it is not compulsory, is a civic duty and we can still consider that Facebook act in the continuation of the State.
Here, the absence of neutrality comes from the second part of the message. It is not reproachable because it is not avoidable. Facebook describes the information to search, and more precisely about the way to act, for itself and for its entourage (what about the others?). While many messages proliferate to criticize « official discourses » about this information and assume sometimes the reverse, in information and advices.
If Facebook acted spontaneously, it chose. This is not reproachable. But, then, it acted as everyone by sending this post. Therefore, Facebook, in a non neutral way, did not « brought » a message from others but, by making its choice freely, it « wrote » a message. As we already did it for the elections, in order to that we vote because it prefers that we vote rather than the contrary. As it does it now again, in order to that we fight against the virus according to methods that seems to it more reliable than others. While so much are proposed
If Facebook does not want this qualification, and we know all the energy deployed by this category of firms to put away this qualification and its consequences
II- SECOND HYPOTHESIS, PREVAILING : ACTION OF THE CRUCIAL OPERATOR BECAUSE OF ITS OBLIGATION TO FIGHT AGAINST FAKE NEWS
In Compliance Law, Facebook is, like others, a crucial digital operator
It is so in response to the order of Law that the crucial operator must fight. In this perspective, the fight is not only negative, it is also positive. Compliance Law deploys these two perspectives
1. Facebook is a « crucial digital operator » subejected to Compliance Law
Compliance Law forces operators which are in position to concretize « monumental goals ». These « monumental goals » are set by public Authorities. Their concretization is internalized within operators which are in good position to reach them (« crucial operators »), according to methods that they can choose.
Concerning digital world, firms which hold platforms are of this category. It is the reason why they participate in the Governance of Internet, without being the master of it : they developed the means without setting the goals
2. Crucial digital operators are « invited » to participate in the fight against fake news
Since this general definition, Law forces firms called « platforms » to fight in Ex Ante against « fake news ». This was the purpose of precise texts, concerning especially electoral periods. But in a general way, the Conseil Supérieur de l'Audiovisuel (French), which operates then as supervisory Authority, « recommended » a more general attention on this question.
We are close from banking « invitation » and from « vigilance » organized in terms of corruption.
It results that the operator which develops tools in Ex Ante to fight against fake news obey to Law and not to its heart. Or not only. It results from this that if a damage happens, the obedience to Law forces it but also protect it, especially if the information was not so fake, remained contested, etc.
However, concerning the virus, necessarily fake messages are diffused on Facebook (« drink garlic water protect you », etc). The power of Internet is such that face to this massive diffusion of these advices, yet unable, World Health Organization and governements themselves have had to intervene to ask to the population to not follow them. It is the reason why, since the beginning of the crisis, Facebook, like Twitter, has withdrawn grossly inexact information concerning virus
But, Compliance Law produced special texts, internalizing in crucial digital operators the fight against disinformation as well as the fight against full of hate speeches. In France, their effectivity is especially entrusted to the Audiovisual Superior Council. Eliminating them comes under, for digital operators, the application of Compliance Law and not of their spontaneous action
Besides, the specificity of the message sent by Facebook comes from the fact that the « monumental goal » is here not only to fight against disinformation but also to promote exact information. As the Autorité des marchés financiers (French) does it on the financial markets.
In the extent where Compliance Law, continuation of Regulation Law, institutes crucial operators in « second degree regulators »
Compliance Law permits so this passage. Under certain conditions.
3. The conditions of the passage from the negative obligation of fighting against fake news to a positive obligation to redirect towards informations presumed reliable
We should not only authorize but also « invite » the crucial operator to realize such a passage. Especially when are concerning, like here vital information, human beings, since Compliance Law put at its center the human being. To take back the committment express by Facebook on 23 of March, it is necessary to pass from "stop misinformation and harmful content" to the organization of the "access to accurate information".
Come back then the recurring grievance excluding such a behavior : platforms do not have to impose their « truth ». Besides, the consequence of such a behavior should be their ulterior liability if some elements reveals to be fake. Except if we ask the legal question to know if by warning others by altruism
This is here that the State intervenes. Because Compliance Law, as a continuation of Regulation Law, always remains anchored in public authorities.
Indeed, the crucial operator must redirect towards information emanating from public authorities, in our case from an official website. If it appears, afterwards, that this information was inacurate, the operator does not engage its liability because with regards to it, this kind of sender generates a presumption of truth, which must be overturned only by the demonstration of a heavy mistake from the operator.
This essential probationary rule permits to clarify what Facebook just did, in application of a Compliance Law which is, more than ever, required to prevent and manage the major systemic crisis, like those whose the world population is currently living.
This shows the analogy with Compliance Law rules applying to forest fires, when they have world dimension by their effects. This was the case of Amazonia during Summer 2019. Such a case, similar to those of a virus threatening the whole planet, justifies an application of Compliance Law, in its substancial definition. For more developments about that, v. Frison-Roche, M.-A.,Compliance et Extraterritorialité : un couple naturel et efficace pour l'avenir de l'Europe, 2020.
We note here that people assuming that it was necessary to "contaminate the most people possible" were arrested and examined. Such an application of Criminal Law is related to safety measures, since the promise of such a behavior is convictable and the imprisonment of these people participates to the safety of the whole population.
We can say that here, as in financial field, information is part of this "essential good" for which circulation is required (and especially because the circulation of information by digital way is not a health risk).
The relationships between Law and "neutral" have been already stutied a lot. We can particularly refer to Barthes' lectures at the Collège de France, Le Neutre, which starts with an analysis of Law. The notion resonates in a particular way concerning digital world because it mentions the principle of "Net neutrality". But this is precisely not a neutral principle.
Here is by the way the problem and this is especially this which justifies Facebook's action. But this justification is on the ground of Compliance Law (v. supra).
About the question to know if social media, and especially Facebook, are or are not editors, with all the specific responsibility attached to this qualification, v. the developments about this in Frison-Roche, M.-A., L'apport du Droit de la Compliance à la Gouvernance d'Internet, 2019, and the technical references.
About the notion of "crucial operator", v. Frison-Roche, M.-A., Proposition pour une notion : l"'opérateur crucial", 2006.
V. in a général way, Frison-Roche, M.-A., Se tenir bien dans l'espace numérique, 2019, and the quoted technical references.
About the negative monumental goals (fight against) and the positive monumental goals (fight for), see in a general way the link between Compliance Law and globalization, in Frison-Roche, M.-A., La Mondialisation vue par le Droit, 2017.
Frison-Roche, M.-A., Le Droit de la Compliance, 2016.
Case law has clearly distinguished both in terms of Compliance about Compliance Law in order to fight against corruption: if the aim is not available for the firm, however it is free to organize as it wishes the way it will tend to the concretization of the goal. See the décision de la Commission des sanctions de l'Agence Française Anticorruption (AFA) du 4 juillet 2019. V. in a more general way, La mesure de l'effectivité et de l'efficacité des Outils de Compliance, 5 mars 2020.
Surge of Virus Minsinformation Stumps Facebook and Twitter , NYT, 8 mars 2020.
Frison-Roche, M.-A., L'apport du Droit de la Compliance à la Gouvenance d'Internet, 2019.
What is answering to the institutionnal question of "digital regulation". Indeed, excluding the question consisting in knowing which institution can "regulate" digital, we can therefore internalize this necessity of regulation in crucial operators, without handing them master of this space which has covered the world (goals being set by Politics), these operators being supervised by public authorities V. in a general way, Frison-Roche, M.-A. (dir.), Régulation, Supervision, Compliance, 2017.
About the place of altruism and information in the legal qualification of whistleblower, v. Frison-Roche, M.A., L'impossible unicité de la catégorie juridique des lanceurs d'alerte, 2019.
Because it is like that that the Chinese physician, died because of the coronavirus and having alerted concerning the need to fight against it, has been qualified.
About this question, the interesting case Harry Markopols / General Electric in August 2019 ; for its analysis, v. Frison-Roche, M.-A., Le lanceur d'alerte, la surréactivité des marchés financiers et le couple "vrai/faux" : le cas G.E., août 2020. The present case can be approached because Facebook has the same soft power than GE had on this person.