UNO March 2017

True friends: legal limits of fake news

In law, post-truth does not exist; only the truth exists. There is no place for alternative facts, but for facts only. And fake news doesn’t exist either, only news that are untrue.

In the wake of the last American elections, the debate regarding the impact of fake news on our societies is being constantly revived. We live in hostile times in relation to truth and objectivity.

The so-called post-truth has invaded public debate, but it is not a new concept, in the same way that fake news isn’t either. What we are dealing with is just propaganda, disseminated with the most spurious intentions: to manipulate public opinion or simply, profit economically from the increase in traffic to the websites that disseminate this type of “information”.

While universal access to information and opinions thanks to the Internet should be welcomed, it has also meant that not only the mainstream media transmit information and opinions, but rather anyone can now promote a wide range of statements, whether true or not. This is where fake news appears; it looks like news, but it isn’t news.

From a legal point of view, a judgment of veracity should essentially be applied to any journalistic news item, which doesn’t imply that this item must be true. Unfortunately, we have known that truth can be elusive since Plato’s times, something difficult to achieve by those of us who live in caves and see only shadows of reality. As a matter of fact, how does the Law define truth? What are the limits of the freedom of expression and information in this context?

In legal terms, fake news becomes a problem when it produces a conflict of rights

In legal terms, fake news becomes a problem when it produces a conflict of rights. Such conflicts arise between the information transmitted and the fundamental rights of the people affected by that information, especially in terms of honor and privacy. Until now, Spanish jurisprudence has gone to great lengths to develop criteria for consideration. In fact, we can even trace back to a judgment by the Supreme Court in 1912, to settle a conflict provoked by a—fake—news item published in El Liberal that reported that a friar had kidnapped the Mayor’s daughter, who some months before had given birth to his child. The Supreme Court, in terms used in that era, went on to declare that the newspaper, by publishing information that was proved to be false, had slandered the Mayor’s young daughter, causing her moral damage.

Nowadays, the Constitutional Court (TC) declares that, in the case of defamation, the following should be examined: (i) the general interest of the information, which should be analyzed on a case-by-case basis within the context of news, and (ii) the veracity of the information.

The veracity of the information is the key point of interest here. As we already mentioned, veracity doesn’t mean that information is completely correct, but rather, it is derived from the diligence demonstrated in verification by the author of the information. In this way, according to Spanish jurisdiction, a piece of information is true even though revealed to be erroneous afterwards, as long as the informer: (i) has displayed the highest level of professional diligence required, and (ii) has performed an adequate fact-checking exercise. This diligence by the informer will depend, in any case, on the object of the news, on the source of the news or on the possibility of cross-checking it. Fulfilling these requirements, information will be safeguarded by freedom of information, as recognized in Article 20.1.d of the Spanish Constitution.

As far as freedom of expression is concerned, this is limited by those restrictions necessary in a democratic society to protect the reputation or the rights of other people. In the words of the Constitutional Court, freedom of expression does not cover insults. For this reason, even though opinions are not subject to the judgment of veracity, they must not include content that is abusive, offensive or damaging to a person’s dignity, reputation or honor, slandering them. In any case, the most recent jurisprudence by the European Court of Human Rights, in the Losantos judgment, reveals that the informers’ freedom of expression enjoys a wide margin for exaggeration and provocation—sometimes hurtful.

For manifestations of greater intensity, the Spanish lawmakers have configured certain offenses: mainly slander—consistent with a false charge of committing a crime—and injuries—statements that are intended to seriously damage a person’s reputation. In addition, criminal legislation also punishes statements that fuel the so-called hate speeches—racially motivated, for example—or rather, extol terrorism and humiliate its victims. In this last area, the courts have recently condemned the authors of certain texts on social media that justified terrorist violence, for seriously infringing the values of tolerance which inspire our legal system.

With the emergence of news that does not comply with minimum standards of veracity, we should highlight the role of authentic journalism—duly adapted to new technological contexts—as the watchdog of democracy. And that, in the words of Thomas Jefferson, indeed one of the founding fathers of the United States—today so threatened by political manipulation—: “If I was allowed to choose between a government without newspapers or newspapers without government, I would have no doubt in choosing the second.”

It is not wise to listen to the clamor for more regulation. Regulatory exuberance would only bring greater uncertainty

In any case, it is not wise to stigmatize social media because a minority of users employs it to disseminate information of questionable veracity. Social media is an informative tool and, above all, a reflection of our society. We cannot ask social networks to become judges of the content published on them. This is mainly because the European regulations on the subject—the Electronic Commerce Directive—expressly prohibits the legal configuration of a general obligation of content supervision for the information they host. In fact, faced with these problems, the main social networks already include terms that ensure that legality and the above-mentioned principles are observed in their terms of use.
This information caused by fake news could be a social problem, but considering the tools that our system has for protecting freedom of speech and information, it is not wise to listen to the clamor for more regulation. Regulatory exuberance would only bring greater uncertainty. On the contrary, it would be better to improve protection of the rights that we enjoy, as well as the methods that the Law has to guarantee such protection.

Carolina Pina
Department of Industrial and Intellectual Property at Garrigues
Pina has a law degree from the University of Alicante, a master’s degree in international law and comparative law from City of London Polytechnic and a postgraduate degree in management of public affairs from ICADE. She also holds the title of Industrial Property Agent. Since 1997, Pina has worked at the Department of Industrial and Intellectual Property at Garrigues, where she has been a partner since 2005. She was awarded the UIA Prix Monique International Prize (Union International des Avocats) in 2009 and has written numerous books about media and sports rights. She has been listed in the rankings of Legal 500 and Chambers in the categories of Intellectual Property, Brands, Sports, Information Technology and Media. [Spain]

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