The draft regulation of generative AI prepared by data protection authorities

by | Apr 21, 2023

"Let's protect our data with regulated generative AI!"

Update May 2023: a privacy and copyright-friendly prompt for text mining

 

Introduction

The draft Regulation on Generative AI is a document prepared by data protection authorities to regulate the use of generative artificial intelligence technologies. It aims to protect the fundamental rights of individuals and to promote innovation and responsible use of generative AI technologies. The draft regulation aims to establish clear and precise rules for the use of generative AI technologies, to ensure transparency and to guarantee that personal data is processed responsibly. It also aims to promote the use of generative AI technologies for the common good and to encourage innovation and responsible use of generative AI technologies.

Generative AI is a sub-field of artificial intelligence (AI) that involves the use of artificial neural networks to create data or content, such as images, music or text, autonomously. Unlike other types of AI that focus on analysing existing data, generative AI creates new data from a series of statistical models learned from a training data set.

The process by which generative AI works varies according to the techniques used. However, in general, artificial neural networks are trained to recognise patterns in existing data sets, such as images or text. These networks are then used to generate new data that resembles the data in the training set.

There are several approaches to performing generative AI, including the use of recurrent neural networks (RNN) or generative adversarial neural networks (GAN). In the case of RNNs, models are trained to predict the next value in a sequence of data and then used to generate new sequences. In the case of GANs, two neural networks are used in tandem: a generative network that creates data and a discriminative network that evaluates the quality of the generated data. Both networks are trained simultaneously until the generative network can produce high quality data.

In short, generative AI uses artificial neural networks to create new data that resembles that of a training set. The techniques used vary, but all involve the use of statistical models to generate new and original data.

What are the main challenges in implementing the proposed regulation of generative AI?

The main challenge for the implementation of the Generative AI regulation project is to define clear and precise guidelines for the development and use of generative AI technologies. It is essential to determine the limits of the use of generative AI technologies and to define rules and procedures for their development and use.

Another important challenge is to develop monitoring and control mechanisms to ensure that generative AI technologies are used responsibly and in accordance with established guidelines. It is also important to develop accountability mechanisms to ensure that companies and users are held responsible for their actions and decisions.

Finally, it is essential to develop data protection mechanisms to ensure that personal data and sensitive information are protected and not used for unauthorised purposes. It is also important to develop intellectual property rights protection mechanisms to ensure that generative AI technologies are not used to infringe the intellectual property rights of others.

What are the advantages and disadvantages of the proposed regulation of generative AI for businesses?

The benefits of the proposed regulation of generative AI for companies are numerous. Firstly, it would allow them to better understand and control their generative AI systems, allowing them to better manage their risks and liabilities. In addition, it would give them greater assurance that their generative AI systems comply with applicable laws and regulations. Finally, it would allow them to better protect their data and systems against cyber attacks and privacy breaches.

However, the proposed regulation of generative AI also has drawbacks for companies. Firstly, it may result in additional costs for companies, as they will have to set up compliance systems and procedures to ensure that their generative AI systems comply with current laws and regulations. In addition, it may result in a loss of time and money for companies, as they will have to put in place compliance systems and procedures to ensure that their generative AI systems are compliant with applicable laws and regulations. Finally, it can lead to a loss of flexibility and freedom for companies, as they will have to comply with current laws and regulations.

How could the proposed regulation of generative AI help protect personal data?

The proposed regulation of generative AI could help protect personal data by placing restrictions on how companies can use personal data. For example, the draft could require companies to obtain explicit consent from users before collecting and using their personal data. In addition, the draft could impose restrictions on how companies can store and share personal data. Finally, the draft could require companies to put in place security measures to protect personal data against loss, misuse and unauthorised disclosure. By imposing these restrictions, the draft regulation of generative AI could help protect users' personal data.

Conclusion

The regulation of generative AI prepared by data protection authorities is an important step towards the protection of data and the rights of individuals. It offers additional protection against the misuse of personal data and artificial intelligence technologies. It also provides additional safeguards for consumers and businesses that use these technologies. The regulation of generative AI is an important step towards a more responsible and safer use of artificial intelligence technologies.

Act now to protect your privacy and personal data! The draft regulation of generative AI prepared by the data protection authorities is an important step to ensure data security and privacy. To learn more about this project and how you can support it, click here: https://roquefeuil.avocat.fr/avocat-droit-informatique-paris/avocat-protection-des-donnees/.

Text mining and artificial intelligence for text generation: respecting copyright and data protection

Text mining is an analytical method for extracting relevant and useful information from large amounts of textual data. Artificial intelligence (AI) plays a key role in this process, using automatic natural language processing (NLP) and machine learning techniques to identify patterns, trends and relationships in text data.

What conditions must the prompt meet in order not to infringe copyright and data protection law?

Some general advice on respecting copyright and data protection rights in the context of using a prompt. To avoid infringing these rights, please ensure that you comply with the following conditions:

1. Do not use copyrighted content without permission: Avoid including text excerpts, images, videos, music or any other content that is protected by copyright without first obtaining permission from the author or rights holder.

2. Citing sources: If you use information or extracts from other sources, it is important to cite them correctly to acknowledge the author's original work.

3. Create original content: Wherever possible, try to create original and unique content that does not directly copy the work of others.

4. Do not disclose personal information: To respect the right to personal data protection, do not ask for sensitive or personal data in the prompt and avoid including information that could identify individuals without their consent (names, addresses, telephone numbers, e-mail addresses, etc.).

5. Respect privacy: Do not share confidential information or details of other people's private lives without their explicit consent.

6. Be aware of applicable laws: Copyright and privacy laws may vary from country to country. It is important to familiarise yourself with the laws applicable in your region or country and to comply with them.

By following this advice, you can reduce the risk of infringing copyright and data protection law when using a prompt. However, for specific legal advice, it is always recommended to consult a lawyer specialising in these areas.

Profiling regulation - The IT lawyer in Paris answers

by | Apr 6, 2023

What does the regulation say about the profiling of people in computer processing, the opinion of the IT lawyer in Paris

 

Personal data protection regulations, such as the European Union's General Data Protection Regulation (GDPR), strictly regulate the profiling of individuals in IT processing.

According to Article 4 of the GDPR, profiling is defined as "any form of automated processing of personal data which involves the use of such data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict factors concerning that natural person's work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements".

Profiling is only allowed in certain specific circumstances, and the data subject must be informed and must have given his or her explicit consent for his or her personal data to be used in this way. In addition, individuals have the right to object at any time to the profiling of their data.

The GDPR also requires organisations to take steps to ensure the transparency, security and accuracy of data used for profiling, as well as to protect the fundamental rights and freedoms of data subjects.

Some remarks by the lawyer specialised in computer law in Paris on the regulations concerning the profiling of persons in data processing, in particular with regard to the RGPD (General Data Protection Regulation), which applies to the member countries of the European Union.

 

Profiling is defined by the GDPR as "any form of automated processing of personal data which consists in using that personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict factors concerning preferences, interests, financial situation, behaviour, etc."

 

The GDPR provides a framework for profiling to protect the rights and freedoms of data subjects, particularly in relation to automated decisions with legal or similar effects. Here are some key points to consider:

 

  1. Consent: Profiling generally requires the consent of the data subject. Individuals must be informed of the existence of profiling and its potential consequences.
  2. Right to object: Individuals have the right to object to profiling when it is used for direct marketing.
  3. Automated decisions: Individuals have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning or significantly affecting them.
  4. Limitation of data: Data processing must be limited to the data strictly necessary to achieve the purposes of the processing.
  5. Transparency: Controllers must provide clear and accessible information on profiling procedures and the criteria used to make automated decisions.
  6. Impact assessment: For high-risk processing operations, such as large-scale profiling, a data protection impact assessment (DPIA) may be required.

 

It is important to note that regulations may vary depending on the jurisdiction and context. Consult Pierre de Roquefeuil for legal advice specific to your situation.

 


Datenschutzbehörde, GZ: D124.3816, Registrar: 2023-0.193.268

 

The Austrian Data Protection Authority (DPA) ruled that the vast majority of personal data collected by the CRIF credit bureau was illegal and should be deleted. 

 

The CRIF collected the addresses, dates of birth and names of almost all Austrians in order to calculate their "creditworthiness" without consent or other legal basis

 

. Most of the basic data used by the CRIF to calculate the "solvency values" come from the address publisher AZ Direkt (which belongs to the German Bertelsmann Group). 

 

AZ Direct is only allowed to pass on this data for marketing purposes and not for the calculation of the credit rating. 

 

These credit ratings also have real impacts, explained Max Schrems: "Millions of people in Austria are affected by this. Customers do not receive a mobile phone contract or an electricity contract if their score is too low. One might have to pay higher loan payments if the bank uses this score. We believe that data should only be collected from clear defaulters, not from the whole population. noyb expects the CRIF to appeal the decision as it is a blow to its business model.

 

CJEU, Opinion of the Advocate General in Case C-634/21 SCHUFA Holding and Others (Scoring) and in Joined Cases C-26/22 and C-64/22 SCHUFA Holding and Others (Release of outstanding debts) Advocate General Pikamäe: the automated establishment of a probability of a person's ability to repay a loan constitutes profiling under the GDPR 

 

Case C-634/21 concerns a dispute between a citizen and the Land Hessen, represented by the Commissioner for Data Protection and Freedom of Information of the Land Hessen (hereinafter 'HBDI'), concerning the protection of personal data. In the course of its business activity of providing its customers with information about the creditworthiness of third parties, SCHUFA Holding AG (hereinafter 'SCHUFA'), a company governed by private law, provided a credit institution with a score for the citizen in question, which was used as the basis for the refusal of the credit applied for by the latter. The citizen then asked SCHUFA to delete the relevant record and to give him access to the corresponding data. However, SCHUFA only informed him of the relevant score and, in general, of the principles underlying the method of calculating the score, without informing him of the specific data taken into account in this calculation and the relevance attributed to them in this context, arguing that the method of calculation falls within the scope of business confidentiality. Insofar as the citizen concerned argues that SCHUFA's refusal is contrary to the data protection regime, the Court of Justice is called upon by the Wiesbaden Administrative Court to rule on the restrictions which the General Data Protection Regulation 1 (hereinafter 'GDPR') imposes on the economic activity of intelligence agencies in the financial sector, in particular in the management of data, and on the impact to be attributed to business confidentiality. Similarly, the Court will have to clarify the scope of the regulatory powers that certain provisions of the RGPD confer on the national legislator by way of derogation from the general objective of harmonisation pursued by this legal act.

 

In his Opinion, Advocate General Priit Pikamäe states, first, that the GDPR establishes a "right" of the data subject not to be subject to a decision based solely on automated processing, including profiling. The Advocate General then finds that the conditions for that right are met since: - the procedure at issue constitutes "profiling", - the decision produces legal effects in relation to the data subject or significantly affects him in a similar way, and 1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (OJ 2016 L 119, p. 1). Directorate of Communication Press and Information Unit curia.europa.eu - the decision can be considered to be based exclusively on automated processing. The provision of the GDPR providing for that right is therefore applicable in circumstances such as those in the main proceedings. 

 

See also: Personal data: the CJEU upholds the overriding interest of official company registers

Damages for invasion of privacy in the context of sexual assault, the lawyer specialised in media and internet law in Paris answers you

by | Mar 10, 2023

What does the law say about invasion of privacy and sexual assault?

Article 39 quinquies of the French Freedom of the Press Act of 1881 provides for a special procedure for persons who believe they have been the victims of revelations in a newspaper or other medium.

Under this article, the person can ask the judge to order the author of the article to pay a fine and damages (civil action adjoining the public action) without having to prove the damage suffered. The amount of damages is determined by the judge according to the circumstances of the case.

It should be noted that this procedure is only available for acts committed through the press, and not for other types of disclosure such as oral disclosure.

The press procedure is a special and criminal procedure governed by the short statute of limitations of three months.

Under press law, legal persons cannot be held criminally liable, but they can be sued for damages (civil liability) incurred by their employees.

Article 9 of the Civil Code on the protection of privacy allows for a civil liability claim for damages (five-year limitation period).

Other criminal or civil qualifications can be sought: articles 226-1 and following of the penal code; 

In criminal matters (excluding press law), companies can be held liable, and the fine incurred is 5 times that incurred for natural persons.

Criminal or civil proceedings?

Criminal prosecution (public action) allows the police to be called in to identify the perpetrators; the public action escapes the prosecuting party, except in the case of the press, where a transaction allows the action to be extinguished.

Civil proceedings are aimed at obtaining damages and can be conducted independently of public proceedings, except for certain offences.

Short circuit or long circuit?

The short circuit is preferred in cases where speed is required. The "accelerated procedure on the merits" allows action to be taken on internet content.

Privacy' or 'press' basis?

The press procedure is entrapment, subject to a short statute of limitations, and is necessary for press offences.

Invasion of privacy is not a 'press offence' but the opponent will tend to show otherwise.

The Press Act (39 quinquies of the amended 1881 Act, cited below) provides for a fine of EUR 15,000 against a weak individual.

Article 39 quinquies Version in force since 01 January 2002

Modified by Ordinance n°2000-916 of 19 September 2000 - art. 3 (V) JORF 22 September 2000 in force on 1 January 2002

Disseminating, by any means and through any medium, information concerning the identity of a victim of sexual assault or abuse or the image of such a victim when identifiable is punishable by a fine of

The provisions of this Article shall not apply where the victim has given written consent.

These provisions are mainly justified by taking into account the interests of the victim. Therefore, publications mentioning the identity of the latter are authorised subject to written agreement (L. 29 July 1881, Art. 39 quinquies, para. 2, same text).

. - Articulation between Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code

It follows from the combination of Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code that, while the dissemination of the identity of a person and the sexual nature of the crimes or offences of which he or she was a victim is prosecuted on the basis of Article 39 quinquies of the Law of 29 July 1881, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a separate act constituting an invasion of his or her privacy, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a distinct fact constituting an infringement of his or her privacy, which may be punished on the basis of Article 9 of the Civil Code (Cass. 1st Civ, 9 September 2020, n° 19-16.415: JurisData n° 2020- 012860).

 

Is compensation possible?

In general, damages for attempted invasion of privacy and for the identification of victims of sexual harassment will vary according to the particular circumstances of each case. However, some general principles that may apply are

  1. Attempted invasion of privacy: If someone attempts to invade another person's privacy, but is unsuccessful, the victim may still be entitled to damages. These damages may include compensation for emotional distress and mental anguish, as well as any other harm caused by the attempt. The exact amount of damages will depend on the seriousness of the attempted invasion of privacy and the harm suffered by the victim.
  1. Identification of victims of sexual harassment: If someone reveals the identity of a victim of sexual harassment, the victim may be entitled to damages. These damages may include compensation for emotional distress, mental anguish and any harm caused by the disclosure of their identity, such as damage to their reputation or loss of earnings. The exact amount of damages will depend on the severity of the harm caused by the disclosure and the particular circumstances of the case.

It is important to note that damages for attempted invasion of privacy or identification of victims of sexual harassment may vary depending on the jurisdiction and laws applicable to the case. 

 

It is advisable to consult a lawyer specialising in press, media and internet law in Paris to determine your legal rights and options. Roquefeuil Avocats will assist you.

See as well :

Right to be forgotten, privacy, Roquefeuil Avocats can help you

Contact

Defamation, insult, contempt, denunciation, false testimony: be assisted by a lawyer in criminal communication law in Paris

by | Feb 16, 2023

Texts and sanctions, prescriptions, means of defence:

Defamation and insult are so-called "press offences" subject to a special and entrapment procedure designed to preserve freedom of expression and to discourage those who wish to have harmful content removed or punished.

For example, the limitation period for prosecution is in principle three months, after which the action is time-barred.

The law of 29 July 1881 on the freedom of the press provides for and punishes these offences.

Section 29

Amended by Ordinance of May 6, 1944 – art. 4

Any allegation or imputation of a fact which is prejudicial to the honour or consideration of the person or body to which the fact is imputed is defamation. The direct publication or reproduction of this allegation or imputation is punishable, even if it is made in dubious form or if it is directed at a person or body not expressly named, but whose identification is made possible by the terms of the incriminating speeches, shouts, threats, writings or printed matter, placards or posters.

Any insulting expression, term of contempt or invective which does not contain an imputation of any fact is an insult.

Section 32

Amended by LAW n°2019-222 of March 23, 2019 – art. 71 (V)

Defamation committed against individuals by any of the means set out in Article 23 shall be punishable by a fine of EUR 12 000.

Defamation committed by the same means against a person or a group of persons because of their origin or their membership or non-membership of a particular ethnic group, nation, race or religion shall be punishable by one year's imprisonment and a fine of 45,000 euros or one of these two penalties only.

Defamation committed by the same means against a person or a group of persons because of their sex, sexual orientation or gender identity or their disability shall be punishable by the penalties provided for in the preceding paragraph.

In the event of a conviction for one of the acts provided for in the two preceding paragraphs, the court may also order :

1° The posting or dissemination of the decision pronounced in accordance with the conditions provided for by Article 131-35 the penal code;

 

Defamation: how is it punished? how to defend yourself?

The defenses are:

  • the truth of the facts
  • good faith
  • the fact that it is not defamatory or injurious to honour or reputation
  • the absence of a specific fact, the expression of an opinion or an insult

When the facts reveal discrimination, police custody and immediate appearance are incurred (induced by the one-year imprisonment sentence). The CRPC is excluded.

Pre-trial detention is not envisaged, in principle (the warrant must be strictly necessary for the investigation and proportionate to the seriousness of the offence (CA Paris, 4th ch. int., May 15, 2009 no. 2008/06790 : Com. com. electr. 2010, chrono. 3, No. 12, obs. C. Bigot).

The summary procedure can be used to overcome the urgency, as well as the accelerated procedure on the merits provided for by Article 6.I.8 paragraph 1 of Law No. 2004-575 of 21 June 2004 for confidence in the digital economy.

The right of reply and the sanction for refusal of the right of reply speed up the possibilities of challenge.

The judgments often state in the preamble of their motivation and in a synthetic way:

– article 29 paragraph 1 of the law of July 29, 1881 defines defamation
such as the direct publication or by way of reproduction of “any
allegation or imputation of a fact which undermines the honor or
consideration of the person or body to which the act is attributed”;
– the person or body to which the act is attributed must be
expressly named or failing that, their identification must be made
possible by the terms used or their intrinsic circumstances or
extrinsic;
– it must be a specific fact, likely to be the subject of debate
contradictory on the proof of its truth, which thus distinguishes the
defamation, on the one hand, insult - characterized, according to the second
paragraph of article 29, by “any offensive expression, terms of
contempt or invective which does not contain the imputation of any fact ”- and,
on the other hand, from the subjective expression of an opinion or judgment
of value, the relevance of which can be freely discussed within the framework
of a debate of ideas but whose truth cannot be proven;
– the honor and consideration of the person should not
to appreciate according to the personal and subjective conceptions of this one,
but according to objective criteria and the general reprobation
caused by the disputed allegation, that the imputed fact is criminally
reprehensible or manifestly contrary to the rules of morality
commonly accepted;
– defamation, which may be in the form of allusion or
of insinuation, must be assessed taking into account the elements
intrinsic and extrinsic to the medium in question, namely both the
the very content of the remarks and of the context in which they take place;
– these provisions apply in civil matters, including before the
President of the Court.

 

Name-calling :

Section 33

Amended by LAW n°2021-1109 of August 24, 2021 – art. 38

Insults committed by the same means against the bodies or persons designated by Articles 30 and 31 of this law shall be punishable by a fine of 12,000 euros.

Insulting individuals in the same way, when not preceded by provocation, will be punishable by a fine of EUR 12 000.

45,000 fine for insulting a person or group of persons by the same means on account of their origin or their membership or non-membership of a particular ethnic group, nation, race or religion.

The penalties provided for in the previous paragraph shall apply to insults committed under the same conditions against a person or a group of persons on the grounds of their sex, sexual orientation or gender identity or their disability.

When the acts mentioned in the third and fourth paragraphs of this article are committed by a person holding public authority or entrusted with a public service mission in the exercise or on the occasion of the exercise of his or her functions or mission, the penalties are increased to three years' imprisonment and a fine of 75,000 euros.

In the event of a conviction for one of the acts provided for in the third and fourth paragraphs, the court may also order :

1° Posting or disseminating the decision pronounced under the conditions provided for by Article 131-35 of the Criminal Code;

2° (Repealed).

 

Many special regimes exist (offences involving acts against the authorities, or racial or sexist discrimination, etc.)

Defamation and insult can be pursued in criminal and civil proceedings, while referral to an investigating judge in principle allows for a more active search for anonymous perpetrators.

The withdrawal stops the prosecution (art.49).

Our article: Online abuse: check the definition

Defamation and non-public insults are less severely sanctioned.

Article R621-1

Non-public defamation of a person is punishable by a fine of EUR 38 for a 1st class offence.

The truth of defamatory facts can be established in accordance with the legislative provisions relating to the freedom of the press.

Article R621-2

Non-public insult to a person, when not preceded by provocation, is punishable by a fine of 38 euros for a 1st class offence.

Roquefeuil's media and digital law firm can assist you in prosecuting or defending these issues of defamation and insult - make an appointment.

Communication or verbal or written expression in general nevertheless give rise to other forms of offence which do not fall under the press regime and are punishable under civil or criminal law, or commercial case law. Thus, commercial denigration is punishable under civil law, in the field of unfair competition, and allows for the prosecution of acts aimed at discrediting the competitor with a view to undermining its commercial activity.

Our article: The negative opinion: Roquefeuil responds

Contempt: how is it punished? how to defend yourself?

Contempt is provided for and punished by the Penal Code:

Section 433-5

Amended by LAW n°2021-1520 of November 25, 2021 – art. 55

Words, gestures or threats, writings or images of any kind that are not made public or the sending of any object whatsoever addressed to a person entrusted with a public service mission, in the exercise or on the occasion of the exercise of their mission, and of such a nature as to undermine their dignity or the respect due to the function with which they are entrusted, shall constitute a contempt punishable by a fine of 7,500 euros.

When it is addressed to a person holding public authority, a firefighter or a marine firefighter in the exercise or on the occasion of the exercise of his or her duties, contempt is punishable by one year's imprisonment and a fine of 15,000 euros.

When it is addressed to a person entrusted with a public service mission and the acts were committed inside a school or educational establishment, or, during the entry or exit of pupils, in the vicinity of such an establishment, the offence is punishable by six months' imprisonment and a fine of 7,500 euros.

When committed in a group, the contempt provided for in the first paragraph is punishable by six months' imprisonment and a fine of EUR 7 500, and the contempt provided for in the second paragraph is punishable by two years' imprisonment and a fine of EUR 30 000.

 

Section 433-5-1

Creation Law n°2003-239 of March 18, 2003 – art. 113 () JORF March 19, 2003

The fact of publicly insulting the national anthem or the tricolour flag during a demonstration organised or regulated by the public authorities is punishable by a fine of 7,500 euros.

When committed in a group, this insult is punishable by six months' imprisonment and a fine of 7,500 euros.

The threshold of 6 months imprisonment triggers the possibility of custody and immediate appearance.

The contempt is directed against the authority, and is not committed by way of public broadcast.

The Constitutional Council (Cons. const. 9 Apr. 2021, n° 2021-896 QPC) notes that "the same statement made publicly against a person entrusted with a public service mission or depositary of the public authority may constitute a public contempt or insult”. However, it notes that, if it is a question of an attack on the dignity of the functions in the two cases, this attack is different since the contempt must, to be punishable, according to the constant case law of the Court of Cassation, be addressed directly to the offended person or proceed from a desire that the remarks be reported to him by a person present. In other words, contempt is only punishable if it affects the holder of the office. Conversely, public insult does not have to be addressed directly to the person concerned or intended to be reported to him. The two acts being of a different nature, the principle of equality before the law is preserved.

Contempt implies a direct relationship, a form of verbal almost physical aggression. Public insult is primarily directed at an audience that is not the person insulted.

it is also necessary to compare the following offences, which appear from the same register:

Slanderous denunciation: how is it sanctioned? how to defend yourself?

According to article 226-10 of the penal code: 

“Rule 226-10 version in force since December 11, 2016, Amended by Decision no. 2016-741 DC of December 8, 2016 – art. 4, c. initiate.

The denunciation, by any means and directed against a specific person, of a fact which is likely to lead to legal sanctions, administrative or disciplinary and which is known to be wholly or partially inaccurateThis is the case when it is addressed either to a judicial officer or to an administrative or judicial police officer, an authority with the power to act on it or to refer it to the competent authority, either to the hierarchical superiors or to the employer of the denounced person is punished by five years' imprisonment and a fine of 45,000 euros.

The falsity of the fact denounced necessarily results from the decision, which has become final, of acquittal, discharge or dismissal, declaring that the act was not committed or that it is not attributable to the person denounced.

In any other case, the court hearing the proceedings against the whistleblower shall assess the relevance of the charges brought by him.”

 

False testimony:

It involves a statement made in court:

Article 434-13 of the penal code:

Version in force since January 1, 2002 Modified by Order no. 2000-916 of September 19, 2000 – art. 3 (V) JORF September 22, 2000 in force on January 1, 2002

False testimony given under oath before any court or before a judicial police officer acting in execution of a letter rogatory shall be punishable by five years' imprisonment and a fine of EUR 75 000.

However, the false witness shall be exempt from punishment if he or she spontaneously retracted his or her testimony before the decision to terminate the proceedings was taken by the investigating court or the trial court.

 

The fake news:

These are false news, in French law they are sanctioned when they aim to distort electoral campaigns.

"Art. L. 163-2.-I (Electoral Code).-During the three months preceding the first day of the month of general elections and up to the date of the ballot in which the elections are held, where inaccurate or misleading allegations or imputations of a fact likely to affect the fairness of the forthcoming ballot are deliberately, artificially or automatically disseminated on a massive scale by means of an online public communication service, the interim relief judge may, at the request of the public prosecutor, any candidate, political party or grouping or any person with an interest in acting, and without prejudice to compensation for the damage suffered, prescribe to the natural or legal persons mentioned in Article 6(2)(I) of Law No 2004-575 of 21 June 2004 on confidence in the digital economy or, failing this, to any person mentioned in Article 6(1)(I), all proportionate and necessary measures to stop the broadcasting.
“II.-The judge in chambers shall rule within forty-eight hours of the referral.
"In the event of an appeal, the court shall decide within forty-eight hours of the referral.
"III - Actions based on this article shall be brought exclusively before a district court and a court of appeal determined by decree.

The telecoms regulator ARCOM ensures that foreign states do not interfere with the fairness of the election.

LAW No. 2018-1202 of 22 December 2018 on the fight against the manipulation of information thus amends the electoral code, THE LAW OF 30 SEPTEMBER 1986 RELATING TO FREEDOM OF COMMUNICATION (Articles 5 to 10),

Platforms have obligations of transparency and cooperation, and must set up reporting procedures to combat fake news.

European regulations (DSA–DMA) strengthen the obligations of platforms in terms of transparency on the origin of advertisements, which in principle allows for the detection of political advertisements, and platforms can choose to hide certain content during election periods, or set up fact-checking cells to alert the reader.

Are you a victim of insult, defamation, contempt, false testimony, and would you like to know how you can defend yourself? Pierre de Roquefeuil, a lawyer specializing in communication law in Paris, supports you to advise you and to ensure that your interests are respected.

The lawyer specializing in communication law advises you and helps you identify the exact fault committed by the author of the comments online. Get in touch with Pierre de Roquefeuil, a lawyer specializing in communication law in Paris.

Right to be forgotten, to be dereferenced from search engines 

online hate

Responsibilities of internet and media actors

What to do in case of defamation?

by | Jan 4, 2023

 

Firstly, check that there is a case of defamation:

 

Defamation is saying or writing something negative about a person, a company or a group of people, which may cause them harm. Defamation can be verbal or written, and can be done publicly or privately. It can take the form of slander, which is defamation in the knowledge that what is said is untrue, or libel, which is defamation in the belief that what is said is true but without verifying the information. Defamation is punishable by law in many countries, including France.

 

 

In France, how is defamation punished?

 

In France, defamation is punished by heavy fines by the law of July 29, 1881.

According to Article 29 of this law:

Any allegation or imputation of a fact which is prejudicial to the honour or consideration of the person or body to which the fact is imputed is defamation. The direct publication or reproduction of this allegation or imputation is punishable, even if it is made in dubious form or if it is directed at a person or body not expressly named, but whose identification is made possible by the terms of the incriminating speeches, shouts, threats, writings or printed matter, placards or posters.

Any insulting expression, term of contempt or invective which does not contain an imputation of any fact is an insult.

 

 

However, there are limits to this prohibition. For example, defamation cannot be prosecuted if the defamatory statements were published in order to defend freedom of expression or to reasonably criticise a person or company. Similarly, defamation is not actionable if the defamatory statements are based on proven facts and the person who published them acted in good faith.

In the event of a conviction for defamation, the convicted person may be required to publish a corrigendum and pay damages to the defamed person.

 

 

 In the United States, how is defamation punished?

 

In the United States, defamation is punished similarly to what is provided for in France. It is considered a form of private defamation or public defamation depending on who is the target of the defamatory remarks.

Private defamation is generally considered less serious than public defamation and usually involves defamatory statements against a private person, rather than a public person. Public defamation, on the other hand, usually involves defamatory statements against public persons, such as celebrities or politicians.

In both cases, defamation can be prosecuted and result in damages for the person defamed. However, in the United States, defamation law is influenced by the First Amendment to the Constitution, which guarantees freedom of speech. As a result, it is often more difficult to sue for defamation in the US than in France or other countries.

 

 

 In the UK, how is defamation punished?

 

In the UK, defamation is punishable under the Defamation Act 2013. According to this Act, defamation is the act of publishing a "writing, word, picture or other sign which imputes to another person a serious fault, infirmity, ignominy or other dishonourable quality".

The law also provides a number of defences to defamation, including the defence of truth (if the defamatory statements are true), the defence of public liability (if the defamatory statements were published in the public interest) and the defence of 'private publication' (if the defamatory statements were published to a small number of people).

In the event of a conviction for defamation, the convicted person may be required to publish a corrigendum and pay damages to the defamed person. The law also provides criminal penalties for defamation, but these are generally not enforced in defamation cases.

 

 

 

In Spain, how is defamation punished?

 

In Spain, defamation is punishable under the Criminal Code and the Press Law. According to Article 208 of the Spanish Criminal Code, defamation consists of 'saying or publishing slanderous or defamatory statements against a person, a group of persons, a company or an institution, in such a way as to harm their honour or consideration'.

Defamation can be prosecuted and lead to damages for the defamed person. The Press Act also provides for sanctions for defamation, including the publication of a correction and the obligation to pay damages.

However, there are limits to the prohibition of defamation in Spain. For example, defamation cannot be prosecuted if the defamatory statements were published in order to defend freedom of expression or to reasonably criticise a person or company. Similarly, defamation cannot be pursued if the defamatory statements are based on proven facts and if the person who published them acted in good faith.

 

 

 

In Germany, how is defamation punished?

 

In Germany, defamation is punishable under the German Criminal Code. According to Section 186 of the German Criminal Code, defamation is 'the dissemination of slanderous or defamatory statements against a person or group of persons, an enterprise or an institution, in such a way that their honour or reputation is damaged'.

Defamation can be prosecuted and lead to damages for the defamed person. The law also provides for criminal penalties for defamation, which can go up to five years' imprisonment in the case of serious defamation.

However, there are limits to the prohibition of defamation in Germany. For example, defamation cannot be prosecuted if the defamatory statements were published with the aim of defending freedom of expression or reasonably criticising a person or company. Similarly, defamation cannot be prosecuted if the defamatory statements are based on true facts and the person who published them acted in good faith.

 

If you need the assistance of a lawyer for internet defamation, please contact Roquefeuil lawyers, specializing in defamation, communication law and the internet.

To get a quick appointment and a first orientation, make an appointment here: make an appointment

 

custody and password

by | Nov 7, 2022

Updated November 7, 2022

One person was arrested for possession of narcotics. While in custody, she refused to give investigators codes to unlock two phones believed to have been used in drug trafficking.

This person, prosecuted before a criminal court, was not sentenced for having refused to give his telephone unlocking codes; she was released.

Passwords and encryption conventions allow the protection of data, and their disclosure imposed by the authorities can endanger individual freedom and democracy but also allow the repression of crime.

The Constitutional Council, on the QPC in which the Quadrature du Net intervenes, rules that the incrimination of refusal to communicate a password is not contrary to the Constitution.

Article 434-15-2 of the Penal Code, in its wording resulting from the law of 3 June 2016 provides:


"It is punishable by three years' imprisonment and a fine of €270,000 for anyone who has knowledge of the secret decoding agreement of a means of cryptology likely to have been used to prepare, facilitate or commit a crime or offence to refuse to hand over the said agreement to the judicial authorities or to implement it, at the request of these authorities issued pursuant to Titles II and III of Book 1 of the Code of Criminal Procedure. 

"If the refusal is made when the surrender or implementation of the agreement would have made it possible to avoid the commission of a crime or offence or to limit its effects, the penalty is increased to five years' imprisonment and a fine of €450,000.
Article 29(1) of the 2004 law on confidence in the digital economy (theoi n° 2004-575 of 21 June 2004 for confidence in the digital economy) provides:

Cryptography means any hardware or software designed or modified to transform data, using secret conventions or to perform the reverse operation with or without secret conventions. The main purpose of these cryptographic means is to guarantee the security of the storage or transmission of data, by making it possible to ensure their confidentiality, authentication or control of their integrity.

 
The Council gave a classic reading of the text, i.e. a strict one, in application of the principle according to which criminal law is to be interpreted strictly, and deduced the constitutionality of the provision (in this case paragraph 1 of the article, the only one referred to).
 
The prosecution will have to characterise against the suspected person :
 
- knowledge of the password or agreement (the person who is required is the one who actually knows the password, and not only the person who is supposed to know, or who could, or should, know...technical intermediaries as companies relying on their machines to manage and access passwords could justify their refusal by opposing the absence of any physical body (human being) having access to the secret agreement) ;
– the probability that the means of cryptology has been used for criminal or tortious purposes.
 
The judicial authorities referred to are those involved in the preliminary or flagrante delicto investigation or in the investigation (Titles II and III of Book I of the Code of Criminal Procedure). The request must comply with certain formalities (official notification of the consequences of a refusal).
 
Decision 2018-696 of the Constitutional Council of March 30, 2018.
A simple request for the communication of a password by a police investigator does not therefore appear to qualify the facts. And the refusal to communicate the locking code, a "PIN" (for Personal Identification Number) is not a refusal to communicate an encryption convention. In this sense moreover Paris 16 April 2019, n°19/09267.
 
Conventionality. The Court of Cassation ruled that the offence of refusing to hand over a secret cryptological decryption agreement did not in itself infringe the right to remain silent and not to incriminate oneself under Article 6 of the European Convention on Human Rights (Cas. crime, Dec. 10 2019, No. 18-86.878)
 
The Court of Cassation indicates that the refusal to deliver the PIN may amount to refusing to deliver the decryption agreement (Crim.13 oct.2020, n°20-80150).
 
It is a question of distinguishing between the code allowing access to a terminal (computer, telephone, server, SIM card, etc.) and the key allowing decryption of the stored or circulating data or metadata.
 
In some cases, PINs or other secret codes and passwords do not prevent access to data, in others yes, the case law is therefore hesitant (CA Paris 16 April 2019, 18-09.267 ;  Cas. crim., 13 Oct. 2020, no. 20-80.150; Cas. crim., 13 Oct. 2020, n° 19-85.984).
 

In its judgment of November 7, 2022, the Court of Cassation, plenary assembly, appeal no. K 2183.146, indicates, in its press release:

A " means of cryptology is intended to render information incomprehensible, in order to secure its storage or transmission. A " secret decryption convention allows the clearing of encrypted information. When a mobile phone is equipped with a " means of cryptology », their home screen unlock code may be a " decryption key » if the activation of this code has the effect of clarifying the encrypted data that the device contains or to which it gives access. Therefore, if a mobile phone with these technical characteristics - as is the case with most mobile phones today - is likely to have been used for the preparation or the commission of a crime or offense, its holder, who will have been informed of the penal consequences of a refusal, is required to give the investigators the unlock code for the home screen. If he refuses to communicate this code, he commits the offense of “refusal to deliver a secret decryption agreement ". Therefore, in this case, the decision of the Court of Appeal is quashed and another Court of Appeal is appointed to retry the case.

 
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