The right of communication and the sanction of harmful content

The right of communication and the sanction of harmful content

Several procedural ways exist to deal with disagreements on information disseminated on a more or less large scale by the media and the various means of communication, social networks or others.
This consists, most often with a minimum of preliminary amicable steps or with the platforms, to seize the criminal courts (repressive approach) or civil (approach more oriented towards the withdrawal of content) via emergency procedures or long procedures, to seek content removal and damages.
Administrative authorities such as CNIL, CSA, DGCCRF, etc. or associations can also be contacted within the framework of preventive or collective actions. Mediation can also be helpful.
Depending on the case, it will be necessary to favor a short procedure (in the most obvious cases) or a long one, to initiate a civil or criminal investigation or to cite directly before the court.
The law on the press deals more particularly with the repression of offenses such as defamation and insult, of attacks on the presumption of innocence, with a view to preserving freedom of expression.
This press procedure is therefore strewn with pitfalls, which has the effect of discouraging complainants. And the use of a short procedure for a withdrawal of publication or a request for deprogramming can prove to be perilous.
But around the law on the press there are specific legislations and regimes which make it possible to sanction other types of content: pell-mell:
– The recent law on electoral manipulation (“fake news” law),
– The protection of privacy,
– The internet host reference,
– Law on personal data,
– Image rights, copyright,
– Special regimes on sensitive content (pedophilia, terrorism, etc.),
…
In general, any content can give rise to civil or criminal proceedings as soon as damage is proven or imminent, unless one is in the cases regulated by the special regimes, in which case one cannot waive these special regimes. Hence the importance of the correct qualification of the content.
Thus, for example, the disparagement of a product or a company, of a brand, can often be settled more simply by short civil proceedings, by carefully qualifying the incriminated content as “disparagement” and not as defamation.
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