Disinformation has become one of the central challenges of modern democracies. With the multiplication of discussion spaces as well as the explosion of user generated content, the amount of –and speed at which– disinformation is created and spread is unprecedented. Facing this evolving challenge (disinformation is not something new), multiple legal and non-legal frameworks have been implemented both at European and national level in EU Member States.
This document aims at putting together the key issues regarding the legal framework applicable in Luxembourg, in June 2023.
We would like to thank Norton Rose Fullbright law practice for their support, as well as Thomson Reuters TrustLaw programme.
The term “disinformation” encompasses a series of topics that may be tackled, under Luxembourgish law, such as: disinformation/misinformation, defamation/slander, impersonation of organisations, online content moderation, unfair advertising, political advertising, and information manipulation and foreign interference.
Dis- and misinformation, as an individual behaviour consisting in sharing fake news, is not yet regulated in Luxembourg. The right of freedom of speech is guaranteed by Article 24 of the Luxembourg Constitution, both for individuals and for the media.
The Luxembourgish Criminal Code (Article 443) punishes the offences of defamation and slander. The offence can be established even if the offender merely reproduced a publication made in Luxembourg or in another country, for example on a social media such as Facebook.
The impersonation of organisations, for example the impersonation of a company’s domain name, may be considered as a form of fraud towards individuals and other companies under the Luxembourgish Criminal Code.
Despite the fact that online content moderation is partly regulated, under Luxembourgish law, there is no legal definition on the meaning of “online content moderation”.
By reference to Luxembourgish Consumer Code, unfair advertising – containing false information that is likely to mislead the average consumer – is defined as a form of misleading commercial practice. Misleading omission may also be considered as a misleading commercial practice. Therefore, a piece of advertising that does not mention an element that may be important for the consumers to make an informed decision may be considered as a misleading omission.
Online political advertising is mainly self-regulated through agreements between Political parties. the only exception to this self-regulation being if the advertisement contains illegal content. The latest voluntary code of conduct on this topic signed between nine Luxembourgish political parties includes a financial limit of advertising, including on social networks. However, the lack of a legal basis also means that there are no fines or other sanctions for breaking these rules.
The Luxembourgish law has no legal definition of information manipulation and foreign interference, as these topics are not regulated. There are no rules or regulations that prohibit or regulate the foreign interference through denial, disinformation and manipulation of information. However, there are rules regulating the dissemination of illegal content, and these rules exist at national level. The rules on impersonation, online content moderation, and unfair advertising exist also at national level.
There are three main European instruments that play a role, in Luxembourg, in relation to online content moderation. The “e-commerce Directive” (2000/31), provides rules for information society services. The Directive SMA (2010/13) created a legal regime for video content sharing platforms and was transposed in the law of 27 July 1991 on electronic media. The Commission Recommendation (EU) 2018/334 guides Member States in effectively tackling illegal content online while respecting certain fundamental principles.
In 2022, the Digital Services Act (DSA) was adopted. Aiming at regulating online platforms and their content moderation processes, this regulation will have an impact on how harmful content is managed by online services. The Luxembourgish Ministry of Economy is the authority responsible for the DSA implementation in the country.
Download the full PDF here.