Don't Call It Fake News. It's Disinformation

THE FIRST STEP TO ADDRESS THE PHENOMENON OF FAKE NEWS IS TO PROPERLY DEFINE IT FROM A LEGAL STANDPOINT. IN FACT, THE PROBLEM THAT WE FACE IS THAT OF DISINFORMATION, AND FOR THIS REASON THE ISSUE MUST BE APPRAISED IN THE CONTEXT OF THE PROTECTION OF FREEDOM OF INFORMATION, WHICH IS DIFFERENTLY INTERPRETED ON THE TWO SIDES OF THE ATLANTIC

by Oreste Pollicino, Dept. of Legal Studies, Bocconi
Translated by Alex Foti


These days, it’s hard to come across a news program that doesn’t talk about the problem of fake news. Equally hard is to understand what this (infelicitous) expression really means and what shouldn’t be considered part of it. Perhaps, more radically, we should just ditch the term of fake news, since it has been used so extensively to have become emptied of meaning, and replace it with that of disinformation. There are at least two reasons to support such choice. In the first place, the concept of fake is ambivalent, because it doesn’t distinguish between what is false but lawful or indifferent for the legal system, and what it is not only false but also illicit, such as, for example, defaming someone by negatively affecting their reputation.

Conversely, the use of the term disinformation is, I think, capable of defining more clearly the perimeter of the phenomenon; this is a grey area not regulated by law, because it has its basis in an exercise of a constitutional freedom – that people are free to express their thoughts even through statements that happen to be false – and manipulative information that, in certain contexts, can have an impact on the formation of public opinion and be taken into consideration as relevant for the legal system. Obviously, it is fundamental for legislative and judicial responses to be proportionate.

Secondly, talking about disinformation enables an immediate reference to the issue which, although often ignored, is at the root of the debate around fake news: the constitutional protection of the right to information and, even before that, of freedom of expression. In this respect -- another point that is often overlooked – the view taken by American constitutionalism does not coincide with the perspective adopted by European constitutional thinking. While the First Amendment of the US Constitution, which protects freedom of expression, in addition to having a unlimited field of application, primarily focuses on the active dimension of the freedom of information, i.e. it first and foremost considers those who inform and by what means, the same cannot be said about the nucleus of European constitutionalism.

Two are the elements of divergence. First, unlike in the US First Amendment, in the EU freedom of expression, and consequently freedom of information, is constrained by limits that are explicitly codified (just think of Article 10 of the European Convention on Human Rights). This means that there is, so to speak, no presumption of prevalence of the freedom of expression over other rights that are in potential conflict, but rather that there is a balance between the two. Secondly, and this is perhaps decisive to understand the reasons for the need of a European response to the problem of disinformation, EU constitutionalism, unlike US constitutionalism, focuses not so much on the active side of information (journalists, writers, publishers, broadcasters, etc.), but on the expectation of protection for those who are informed, i.e. on freedom of information’s passive side (readers, viewers, listeners, etc.). If that is so, and thus the right to be informed in a pluralist and effective way is part and parcel of the European Bill of Rights, then one could legitimately argue that misinformation intentionally aimed at harming the right to be informed is presently not covered by European constitutional safeguards. This would not only highlight that there’s room for legislative intervention, but also that there’s an obligation for public law to act in this sense. Obviously, as we note, such legal intervention would need to be carefully calibrated in terms of wording and penalties. But that is another story.