It was close to midnight on Friday May 5th 2017 when Emmanuel Macron and members of his campaign staff left the offices of Mediapart after two and a half hours of live streamed interviews, just two days before the second and final round of voting in France’s presidential elections. The group had barely left the premises when their mobile phones began buzzing: an English-language imageboard website called 4Chan was posting the contents of thousands of emails hacked from the accounts of Macron’s election campaign team.
Rapidly, both the mainstream media and social media were relaying the contents, including via Twitter accounts of people close to US President Donald Trump, and also WikiLeaks, which archived the hacked communications.
Macron’s staff swiftly issued a statement insisting that “numerous” fake contents were among the published documents, a data dump which became dubbed “Macron Leaks”, and denounced a “destabilisation of democracy as has already been seen in the United States during the last presidential campaign”.
Enlargement : Illustration 1
Despite the events, Macron was of course soundly elected. Now, one year on, his government has drafted legislation for what has been dubbed an “anti-fake news” law, largely inspired by the “Macron Leaks” experience, which Members of Parliament (MPs) began debating on June 8th. The bill, formally entitled ‘the law for combatting manipulation of information’, which the government, with a huge parliamentary majority, had hoped would be adopted before the end of last week, has met with such wide controversy, within and outside of parliament, that MPs have submitted 216 amendments to it, and the debates in the National Assembly, the lower house, have now been postponed to a future date, which is expected to be in July.
For despite the legitimate desire to combat the manipulation of information that aims to skew and disrupt democratic debate, the draft legislation has attracted a growing consensus against it. But the arguments opposing the bill, which are often of a theoretical nature about the perceived impracticality of its measures, or the definition of what constitutes true or false information, rarely include concrete illustrations of the effects of the proposed law if adopted.
The story of how Mediapart journalists treated the “Macron Leaks” data dump illustrates the dangers the proposed legislation represents for journalism had the proposed legislation been a law in place at the time. For while the events in large part have prompted the drafting of the bill, they also demonstrate the threat to press freedom it contains. In short, a case of when the medicine is more harmful than the illness it is supposed to cure.
When the “Macron Leaks” data dump occurred, there was a lively internal debate at Mediapart about how to cover the event, the sort of discussion that is frequent in an editorial team such as ours. But there was unanimous opinion against the underhand nature of the operation, dumping on the web a mass of data that had been subject to no verification, and therefore of unknown origin, less than 48 hours before the final round of the presidential election.
Mediapart journalist Yann Philippin, specialised in the analysis of large data leaks (he was involved in the recent series of investigative reports, including ‘Football Leaks’ and ‘The Malta Files’, produced in collaboration with our media partners in the European Investigative Collaborations consortium, the EIC), denounced the data dump in an interview with French daily Libération published on May 6th 2017. “Anyone can pounce on the data, take an extract and chuck it without verifying anything onto social media, create a buzz about a part of a document believing that there is something illegal but without being sure,” he said. “That creates an unhealthy emulation which leads to journalists – but also anonymous people, political militants – becoming tempted to sue the documents, to extract things that suit them, to twist reality […] And all that is done live on social media. It’s like putting a thousand mice around a piece of cheese.”
In the case of a large leak of information, the proper approach is take the time to check through the mass of data, to sift between information that is of public interest and that which is strictly of a private nature, to match the elements contained, and to address questions to those concerned. It is a process that can take weeks, even several months. In the case of the ‘Football Leaks’ revelations, which involved 18.6 million documents, 60 journalists from the media partners within the EIC spent seven months investigating the information. They included three Mediapart journalist who worked full time on the project over that period.
But another aspect of the “Macron Leaks” was a cause for concern to us at Mediapart, namely the large-scale publication of personal information which had no reason to be presented in public. In doing so, those concerned may find their personal security and their personal privacy compromised. One person cited in the data dump recently told Mediapart how the revelations of their personal life had had damaging consequences for them and those close to them.
But of course, once the data had been made public, Mediapart could not ignore documents that might be of public interest, and a decision was taken to analyse the information contained in the “Macron Leaks”, while making clear the nefarious origins of the dump, and without knowing beforehand what, if any, would be published.
Thanks to technology developed in conjunction with our partners at the EIC, Mediapart’s technical services indexed all the information in a secure search engine, making it above all possible to carry out targeted research by subject matter, by names, dates and key words. In accordance with our approach to any other similar mass data leak, we decided to take all the necessary time to analyse the information without concern for the surrounding media frenzy, public pressure or the electoral agenda (Macron’s election as president was followed shortly after, in June, by two-round parliamentary elections).
After two weeks of investigations (which included verifications of statements and documents dating from Macron’s election campaign), and questioning of those concerned, we published the first of our articles resulting from the “Macron Leaks” data at the end of May. Written by four journalists, this was about the extraordinary behind-the-scenes fundraising activities of Macron’s election campaign.
An effective law regulating the press exists since 1881
It was just days later that Mediapart revealed how MP Alain Tourret, one of the first French politicians to jump ship in support of Macron’s stand-alone bid for the presidency – he launched his campaign as an independent centrist, creating a new political movement for the purpose – had used his parliamentary expenses to pay for private purchases.
Mediapart detailed how Tourret, formerly from the centre-left Parti Radical de Gauche before joining Macron’s LREM party, and who was tipped to become the head of parliament’s law commission in the event of the LREM winning the general elections, as it did, spent 16,000 euros from his expense allowance on purchases at electrical retailer Darty, golfing holidays and cinema tickets. Following our revelations, which were in part drawn from details of his bank account buried in the “Macron Leaks”, he was forced to refund the sum (see more here).
We continued to analyse the thousands of email and documents contained in the “Macron Leaks” data, which we divided into two categories; on one side was information, notably the election campaign documents, which offered an insight into the policy choices of the candidate, and on the other was information concerning the organisation of the campaign, including invoices, budgetary records, and employment contracts.
It was information from the “Macron Leaks” that pointed to the unusual discounts offered to the Macron campaign by certain service providers. That was put to one side until we were able to cross-check the details with the official campaign spending records that were filed with the French national commission for campaign financing, the CNCCFP, the public body which monitors the spending of candidates. After consulting those records in full at the CNCCFP’s headquarters in April, our subsequent reports in May (see here and here revealed how Macron was the only candidate to be offered knockdown pricing by events firm GL Events, which charged significantly more to other candidates for the organisation of public meetings. Furthermore, we detailed how a director of GL Events had taken an active part Macron’s campaign (see here, in French).
Enlargement : Illustration 2
Also prompted by information contained in the “Macron Leaks” we discovered that the current chief of staff of the president, Alexis Kohler, who is regarded as the mastermind of Macron’s campaign, received just a one-month paid contract for his services – he was in fact during that time financial director for one of the world’s largest maritime shipping and cruise companies, the Swiss-Italian firm MSC. Our investigation was to reveal that Kohler, a senior civil servant who took leave to join MSC during the campaign, was a close relation of the family owners of MSC, and that he had earlier, in his civil service role, been close to government efforts to secure the survival of partly publicly-owned French shipyards STX France, for which MSC was a principal client with the commission of cruise ships worth several billion euros.
This was firstly when he sat on the STX board as the state’s representative, and subsequently when he became cabinet chief at the French finance ministry, latterly under Macron, when the government was engaged in mounting a deal to prevent a takeover of STX France by an Italian competitor – a takeover that was fiercely opposed by MSC. On the basis of our revelations, anti-corruption NGO Anticor lodged a formal complaint against Kohler, who denies any wrongdoing. That complaint led, earlier this month, to the launching of an investigation by the financial crime branch of the French public prosecution services into suspected influence peddling and conflicts of interest (see more here).
The government and its parliamentary majority have obstinately refused to exclude journalism from the proposed legislation’s articles, even though this would be technically a relatively simple move to make.
A number of French lawyers specialised in laws governing the media, including Basile Ader and Christophe Bigot, have recently spoken out against what they see as an unnecessary new law against manipulation of information, which they also say would be inapplicable in practice. They argue that current legislation governing the media, the 1881 press law (see here, in French), is already sufficiently armed against the spreading of so-called fake news.
While the bill is still to be debated in full, and therefore the final contents of the law are yet to be determined, its principal measures are known, allowing us to surmise here what might have happened during the “Macron Leaks” saga if it had been in force at the time.
The bill allows for the urgent obtention of a court order – within 48 hours – to block the spread of false information during an electoral campaign, and there can be no doubt that Macron’s campaign team, who strongly denounced the data dump, would have immediately filed an official complaint. Their complaint would have met the requirements of the proposed law because the data dump included false information, notably about a supposed offshore bank account belonging to Macron. Other documents which were falsely presented as being connected to Macron’s campaign were in fact a manipulation of authentic files about the activities of businessman Ziad Takieddine, a figure at the heart of the ongoing investigation into the suspected funding of former president Nicolas Sarkozy’s 2007 election campaign by the regime of the late Libyan dictator Muammar Gaddafi.
Also, the documents were relayed en masse by numerous anonymous accounts on the social media, including some linked to the fake information spread during the 2016 US elections fought by Donald Trump and Hillary Clinton, meeting the law’s description of automatic publication.
All the bill’s requirements for a magistrate to order the blocking of publication of the “Macron Leaks” files were met, and the whole of the contents would in theory have been banned and anyone who used them for publication would be open to prosecution.
The result would be particularly harmful to the freedom of the press. It would have prevented journalists from carrying out a proper investigation of material contained in the “Macron Leaks” which is of public interest – as illustrated by Mediapart’s investigations. There is then the question of what would be the consequences for journalists who did decide to publish that information which they regard as being of public interest; would they be exposed to prosecution for supposedly relaying fake news?
In short, the situation could easily become an absurd one in which true and important information would be censored in the name of combatting the manipulation of false information. Furthermore, if an assigned judge is unable to decide within 48 hours if the information in question is false, which could represent a difficult task in such a short space of time, that incapacity to rule against its publication could be interpreted as lending it authenticity when in fact a lengthier, proper verification might prove it to be false.
In his 1988 essay Society of the Spectacle, the late French leftwing thinker and theorist Guy Debord wrote: “The simple fact of being henceforth without a retort has given what is false a brand-new quality. It is at the same time the true which has ceased to exist almost everywhere, or at best has seen itself reduced to the state of a hypothesis which can never be proven. The unchallenged false has succeeded in the disappearance of public opinion, which firstly found itself incapable of being heard; then, very soon afterwards, of simply forming itself.”
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- The French version of this article can be found here.
English version by Graham Tearse