“How not to imagine the use that an authoritarian power would make of this precedent? “, protests Mediapart. In a blog post published on April 13, the news site reacted to the call to order issued a few days earlier by the National Commission for the Control of the Electoral Campaign for the Presidential Election (CNCCEP). Saturday April 9, the day before the first round, the body asked him to withdraw two articles just put online. The reason ? They contravened the electoral reserve phase, which begins on Friday evening at midnight. And in which France is again immersed this Saturday, on the eve of the second round.
Two articles frame this very special period, which lasts until Sunday evening 8 p.m. The first, article L. 49 of the electoral code, prohibits “disseminating or having disseminated by any means of communication to the public electronically any message having the character of electoral propaganda”. This goes for everyone: campaign teams, media, ordinary citizens, etc. The second, article 11 of the law of July 19, 1977, stipulates that “no electoral poll may be the subject, by any means whatsoever, of publication, dissemination or commentary”. “.
“Not just informative” articles?
In the case of Mediapart, the CNCCEP based itself on article L. 49 of the electoral code. She considered that the two contentious subjects, entitled “The Le Pen peril: inventory of what it would inflict on society” and “Youth: Macron has not kept his promises and hardly does any more”, could be seen as too committed. She tells us that she alerted us with “tweets, highlighting certain passages”, which were also deleted by the social network following her intervention.
“The commission considered that these articles were not only informative, but that they could be perceived as taking sides and thus influence beyond simply informing voters”, deciphers Bruno Daugeron, university professor in public law. .
Still, “the border is very tenuous”, adds Julien Jeanneney, professor of public law at the University of Strasbourg. “A press organ which explicitly invites its readers, on the day of the election, to vote for a candidate would disregard the rule. It is more delicate if an article simply gives the impression of prolonging the campaign in favor of such and such a candidate, ”he develops. Mediapart, which did not withdraw the two articles, for its part defends the “independent press, whose mission is to inform on subjects of general interest”.
The CNCCEP has no power to sanction, but it can report such facts liable to a fine of 3,750 euros. Nothing of the sort in the case of Mediapart, in particular so as not to tense the situation. In the end, reporting on the first day of the vote, recalling the programs of each of the candidates, for example, is completely authorized. It is also possible to comment on polls published before Friday evening, “provided that the date of first broadcast, the media which broadcast them and the organization which carried them out are indicated”.
The youtubeur Normand Thavaud pinned
These rules (and the vagueness in their interpretation) also apply to ordinary citizens who express themselves on social networks. Of course, it is impossible in practice for the members of the committee to scrutinize all the messages broadcast. “In principle, everyone is concerned. But it all depends on the expected effects,” says Bruno Daugeron. And therefore the number of subscribers, the number of times the message is relayed, etc.
“The border is certainly vague, but not all situations are equal: the messages exchanged between friends on closed Facebook accounts obviously do not have the same scope as those of an influencer followed by 100,000 subscribers », illustrates Julien Jeanneney. The day before the first round, the famous youtubeur Normand Thavaud had to remove a video on Marine Le Pen’s strategy.
Wouldn’t all these rules benefit from being clarified? “The subject of social networks and influencers could lead Parliament to think about and change the law,” we cautiously tell the CNCCEP. “It is always possible to make sure to be more precise. But assuming that we specify the notion of electoral propaganda, we will not be able to eliminate 100% of the controversies, ”concludes Bruno Daugeron.