Why Article 104(B) Risks Undermining the Transition from Criminal Sanctions to Civil Liability?

Executive Summary

Lebanon stands at a decisive moment in its media reform process. After more than sixteen years of legislative discussions, consultations, and parliamentary deliberations, the Draft Media Law is closer than ever to adoption.

The proposed law represents one of the most significant reforms of media legislation in Lebanon in decades. It modernizes the legal framework governing the media sector by replacing criminal sanctions with civil liability for publication-related offences, strengthening the protection of journalists and their sources, promoting transparency of media ownership and financing, reinforcing media pluralism, and establishing a more independent regulatory framework.

The alert argues that Parliament can preserve the opportunity for the immediate adoption of the Media Law while removing the provision that criminalizes false information. Protecting information integrity is a legitimate and necessary public objective, but comparative experience shows that it is better achieved through transparency, platform accountability, media literacy, fact-checking, independent journalism, and targeted regulation of demonstrable harm, not through broad criminal offences that allow the State to determine what is true.

In fact, one amendment introduced during the deliberations of the Joint Parliamentary Committees is not in line with the philosophy of the reform itself.

Article 104(B) provides that any person who “intentionally fabricates misleading information and publishes false and malicious news” may be punished by imprisonment for between three months and three years, as well as a fine.

This provision reintroduces criminal liability for publication-related offences after the Draft Media Law had sought to replace criminal punishment with civil liability.

This Media Alert examines Article 104(B) in light of international human rights law, comparative democratic practice, and recent European approaches to misinformation and disinformation. It draws on an interview conducted by Maharat Foundation with international media policy expert Marius Dragomir, Director of the Media and Journalism Research Center (MJRC).

 

A Historic Opportunity for Media Reform

The next parliamentary plenary session offers Lebanon a serious opportunity to adopt a modern Media Law reflecting contemporary democratic standards.

The proposed legislation contains several long-awaited reforms, including:

• • replacing criminal sanctions with civil liability in publication-related disputes;
• • protecting journalistic sources;
• • strengthening freedom of expression guarantees;
• • improving transparency of media ownership and financing;
• • establishing a more independent media regulatory authority;
• • reinforcing media pluralism;
• • moving away from prior licensing in several areas of media activity.

 

These reforms have been discussed for more than sixteen years through a broad legislative process involving parliamentarians, legal experts, media organizations, professional associations, and civil society.

Preserving these achievements, however, requires ensuring that provisions introduced during the final stages of deliberation do not contradict the principles on which the reform was built.

 

The Reform’s Defining Achievement: Ending Criminal Liability for Publication Offences

According to MJRC Director Marius Dragomir, the transition from criminal sanctions to civil liability constitutes the defining achievement of the Draft Media Law:

“The move from criminal sanctions to civil liability was the reform’s defining achievement: it reframed publication offences as disputes between parties to be settled by compensation, not as offences against the state to be punished by imprisonment.”

This distinction is fundamental.

 

 

Civil liability seeks to compensate a person who can demonstrate that publication caused unlawful harm. It requires the claimant to establish the relevant elements of liability while preserving the defendant’s right to defence and appeal.

Criminal law, by contrast, treats publication as an offence against the State. It exposes journalists, editors, media institutions, bloggers, and other speakers to criminal complaints, interrogation, prosecution, pretrial measures, and imprisonment.

Introducing a criminal offence for “false” or “misleading” information therefore affects more than a single provision. It alters the overall logic of a reform whose central purpose was to remove publication-related disputes from the criminal sphere.

 

As Dragomir explains: “From a comparative perspective this is a regression against a clear international trend: over the past two decades states have been repealing ‘false news’ offences, not adding them. Lebanon risks being cited as a counter-example precisely when it could be positioned as a regional model.”

 

Do Democratic States Generally Criminalize False Information?

As a general rule, democratic states do not create broad criminal offences prohibiting false information merely because it is false.

According to Dragomir, where such offences remain in legislation, they are often remnants of colonial-era. Many are rarely enforced, have fallen into disuse, or have been struck down by courts because of their incompatibility with freedom of expression.

European states have generally responded to misinformation through systemic measures rather than by creating new offences criminalizing content.

Germany’s Network Enforcement Act, commonly known as NetzDG, focused on the procedures followed by social media platforms in addressing content that was already unlawful under existing legislation. It did not create a general new crime of publishing false information.

Hungary illustrates the danger of the opposite approach. In 2020, during the COVID-19 emergency, Hungary amended its criminal legislation on “scaremongering.” The provision was rapidly used to question and intimidate individuals who had criticized government policy and the management of the pandemic.

 

Dragomir identifies the Hungarian example as a standard illustration of how vaguely formulated false-information provisions can be used in practice, not primarily against powerful disinformation networks, but against critics and dissenting voices.

 

The broader European response has therefore relied on measures such as:

• • transparency;
• • platform accountability;
• • media and information literacy;
• • independent fact-checking;
• • support for independent journalism;
• • access to platform data for researchers;
• • election-specific safeguards;
• • protection of media pluralism and editorial independence.

 

What Do International Human Rights Standards Say?

International human rights law does not prevent States from regulating expression that causes legally recognizable harm.

However, every restriction on freedom of expression must satisfy the three-part test established under Article 19(3) of the International Covenant on Civil and Political Rights.

Any restriction must:

• • be prescribed by law with sufficient clarity and precision;
• • pursue one of the legitimate aims exhaustively recognized under international law;
• • be necessary and proportionate to achieving that aim.

The falsity of information, standing alone, is not a legitimate aim recognized under Article 19(3).

As Dragomir explains: “Falsity in itself is not a legitimate aim: there is no right not to be exposed to untrue information.”

Criminal liability may be justified only where the acts fall within an already recognized and narrowly defined category of unlawful acts.

 

The clearest examples include:

• • advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility, or violence, under Article 20(2) of the ICCPR;
• • fraud, where deception is used intentionally to obtain an unlawful benefit or cause a defined form of harm;
• • other independently unlawful acts in which false statements form part of a specific criminal offence.

The law should therefore punish the independently unlawful act, not the mere falsity of expression.

 

Where a State nevertheless legislates in this field, international standards require, at a minimum:

• • precise statutory definitions;
• • proof that the accused had actual knowledge that the information was false;
• • proof of a specific intention to cause harm;
• • a demonstrable and imminent risk of serious harm to a legitimate interest;
• • a clear distinction between factual assertions and opinions;
• • exclusions protecting satire, parody, and honest error;
• • a public-interest defence;
• • the burden of proving falsity placed on the prosecution;
• • independent judicial oversight;
• • no custodial penalties for publication-related offences.

 

These safeguards are particularly important in journalism, where facts may be contested, information develops over time, and reporting on matters of public interest frequently relies on partial evidence, confidential sources, and claims that powerful actors deny.

 

Europe Chose to Regulate the Information Ecosystem, Not Truth

European initiatives dealing with misinformation have largely focused on the systems through which information circulates rather than creating State authorities empowered to adjudicate truth.

As Dragomir explains: “The central lesson is that Europe chose to regulate the system rather than adjudicate the truth.”

 

The European Union’s Digital Services Act focuses on the responsibilities of online platforms, particularly very large online platforms and search engines.

Rather than making false information a criminal offence, the Digital Services Act requires covered platforms to:

• • assess systemic risks arising from their services;
• • adopt measures to mitigate those risks;
• • improve transparency of advertising repositories;
• • provide information about recommender systems;
• • submit to independent audits;
• • give vetted researchers access to relevant data;
• • improve procedural protections for users.

 

The Act focuses on platform design, amplification, advertising systems, and risk management, while leaving the legality of the underlying speech to existing legal standards.

 

The European Media Freedom Act addresses the supply side of the information environment. Its measures seek to reinforce:

• • editorial independence;
• • protection of journalistic sources;
• • safeguards against the use of spyware against journalists;
• • transparency of media ownership;
• • transparency and fairness in the allocation of State advertising;
• • independence of media regulators;
• • assessment of media-market concentrations and their effects on pluralism.

 

Neither instrument creates a general offence of disseminating “false information,” nor does either establish an authority responsible for deciding what constitutes truth.

The European approach recognizes that information integrity depends on stronger democratic institutions, transparent media markets, accountable platforms, independent journalism, accessible data, and an informed public.

 

Why Article 104(B) Raises Serious Concerns

The concern surrounding Article 104(B) does not arise because misinformation is unimportant or because harmful speech should be left without accountability.

It arises from the wording of the provision and the criminal penalties attached to it.

Article 104(B) states: “Every person who intentionally fabricates misleading information and publishes false and malicious news shall be punished by imprisonment from three months to three years and by a fine fixed at five times the minimum wage and reaching up to fifteen times the minimum wage, or by one of these two penalties.”

 

Several elements raise serious concerns from an international human rights perspective.

⦿ Undefined concepts

The terms “misleading information,” “false news,” and “malicious” are not defined.

These concepts can be interpreted broadly and differently by prosecutors, judges, public officials, and complainants. A person cannot reasonably predict which publications may lead to criminal liability.

 

⦿ No distinction between fact and protected expression

The provision does not clearly distinguish between:

• • assertions of fact;
• • opinion and commentary;
• • political rhetoric;
• • satire;
• • parody;
• • journalistic analysis;
• • honest error.

Journalism is carried out under time pressure and in conditions of uncertainty. Information may later prove incomplete or inaccurate without having been fabricated maliciously.

 

⦿ An ambiguous mental element

The expression “intentionally fabricates … and publishes” leaves the required intent unclear.

It is uncertain whether intention must be established in relation to both fabrication and publication, whether the accused must know that the material is false, and whether a journalist who republishes information later shown to be inaccurate may be exposed to prosecution.

 

⦿ Disproportionate penalties

Article 104(B) provides for imprisonment of between three months and three years.

As Dragomir states: “Imprisonment of three months to three years for a publication offence is incompatible with international standards on its face, and sits oddly beside a reform premised on civil liability.”

The inconsistency is particularly striking because the same draft law seeks elsewhere to end imprisonment and criminal prosecution for publication-related offences.

 

Why Criminal Law Does Not Solve Misinformation

Beyond its legal shortcomings, the criminalization of false information creates significant practical risks.

 

⦿ A chilling effect on public-interest journalism

Investigative reporting often deals with contested facts, incomplete records, conflicting testimony, and evidence that becomes clearer over time.

A journalist who fears that a court may later reject their evidence, accept a different version of events, or classify an error as malicious may decide not to publish.

The strongest deterrent is therefore likely to fall on the forms of journalism most necessary to democratic accountability, including investigations into corruption, public expenditure, abuses of authority, security institutions, and politically connected businesses.

 

⦿ Selective enforcement

Broad false-information offences are rarely applied evenly.

In practice, they are often used against critics, journalists, activists, and opposition voices rather than against powerful political or economic actors who organize or finance large-scale disinformation.

The combination of vague terminology and prosecutorial discretion creates a high risk that enforcement will reflect political power rather than objective harm.

 

⦿ The process becomes the punishment

Even where a prosecution does not result in conviction, criminal proceedings impose serious costs.

Summonses, interrogation, searches, pretrial measures, legal expenses, repeated hearings, and prolonged uncertainty can punish journalists and small independent outlets long before a final judgment is issued.

Proceedings may also be initiated primarily to intimidate or exhaust a journalist, without any serious intention of ultimately securing a conviction.

 

⦿ Prosecutors and courts become arbiters of truth

A broad offence concerning false or misleading information places prosecutors and courts in the position of determining historical, scientific, and political truth.

They are institutionally unsuited to perform that role, particularly in polarized societies and in cases involving disputed political narratives.

The result may be the judicialization and politicization of public debate.

 

⦿ Risks to sources and whistleblowers

Investigative journalism, particularly reporting on corruption, often begins with incomplete documentation or information supplied by confidential sources.

The threat of criminal prosecution discourages whistleblowers from sharing information and may pressure journalists to disclose their sources.

It can therefore weaken the very reporting mechanisms needed to expose organized misinformation, corruption, and abuse of power.

 

⦿ No demonstrated effectiveness

There is no convincing evidence that criminal liability reduces the circulation of false information.

Disinformation often spreads through coordinated political networks, platform amplification systems, anonymous accounts, cross-border operations, and paid advertising. Criminalizing individual acts of publication does not address these structural causes.

As Dragomir concludes: “Lebanon would absorb all of the costs and none of the benefits: and would undercut the reputational gain the reform itself was meant to deliver.”

 

Preserving the Reform Without Delaying Its Adoption

Maharat Foundation Executive Director Roula Mikhael considers that Lebanon has a genuine opportunity to adopt one of the most progressive media laws in the region.

The reforms contained in the Draft Media Law should not be lost after sixteen years of legislative work, nor should the entire legislative process be reopened because of one provision introduced during the final stages.

The appropriate response is a targeted correction that preserves the law’s central achievements while removing the criminalization of false information.

“Lebanon should not lose the historic opportunity to adopt the Media Law after sixteen years of discussion. The required step is not to return the entire proposal to the beginning of the legislative process, but to preserve its reformist achievements and remove the ambiguity created by Article 104(B). Information integrity cannot be protected by imprisoning journalists. It is protected through transparency, independent journalism, media literacy, fact-checking, accountable platforms, and independent regulation”, says Maharat Foundation Executive Director Roula Mikhael.

 

 

Protecting the integrity of the information environment is an essential public objective, particularly during elections, conflicts, economic crises, and public-health emergencies.

However, international experience demonstrates that this objective is best achieved through:

• • transparency of media ownership and financing;
• • independent media regulation;
• • support for professional and independent journalism;
• • protection of sources and whistleblowers;
• • media and information literacy;
• • independent fact-checking;
• • transparency of political and online advertising;
• • access to platform data for researchers;
• • platform risk assessments and independent audits;
• • election-specific safeguards;
• • civil remedies for demonstrable harm.

These measures target the conditions that allow misinformation to spread without creating a broad criminal offence that can be used against public-interest reporting.

 

Five Messages to Members of Parliament Before the Next Plenary Session

• First: Lebanon has a historic opportunity to adopt the Media Law after more than sixteen years of legislative work.

• Second: The shift from criminal sanctions to civil liability constitutes the cornerstone of the reform and should be preserved as a fundamental achievement, one that positions it as a regional model to be emulated. 

• Third: Falsity alone does not justify criminal punishment under international human rights standards.

• Fourth: European practice addresses misinformation through platform accountability, transparency, media pluralism, fact-checking, media literacy, and independent journalism—not through broad criminal offences.

• Fifth: Removing or substantially redrafting Article 104(B) can preserve the reform without delaying or reopening the entire law.

 

This report was prepared as part of the project “Support to Media Reform in Lebanon to Enhance Freedom of Expression,” with the support of the European Union.