Dutch scholars: Ronan Ó Fathaigh, Natali Helberger and Naomi Appelman drew attention to the dangers of legally defining misinformation. This is important, due to the fact that in a situation where there is no clear definition of a phenomenon, it is hard to regulate it legally (to introduce criminal sanctions). As a general regulation – they note – disinformation is not illegal, but is assumed to be harmful. This approach is intended to prevail among EU countries. The European Commission divides into: illegal content (e.g. sexual abuse material of children or containing “hate speech”) and harmful content (this category includes misinformation, but besides mis- and malinformation).
The EU advanced Level Expert Group on False News and Disinformation (HLEG) has pointed out that disinformation "is not necessarily illegal", but that it can "be harmful to citizens and the general public" (indicating the hazard to the integrity of elections, the threat to the "democratic values" that form health, science, finance, etc.) and "not to be included in forms of illegal speech" specified as defamation, "talk of hatred" and call for violence1.
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The EU Code of Conduct on Disinformation besides recognises that disinformation "does not violate binding legal obligations"2. Given the guarantees of fundamental rights, including the right to freedom of expression, EU countries, if they want to fight misinformation and another "harmful" content, must look for solutions that do not agree with constitutionally protected freedoms, as well as those guaranteed by global and national laws.
According to Dutch scholars, despite the existence of a number of studies attempting to describe the phenomenon of misinformation and its impact, "in science, however, amazingly small attention has been paid to circumstantial legal definitions of misinformation and their connection to the current legal framework in Europe"3. There is no single clear legal definition of misinformation. There are working definitions, as in the case of “anti-Semitism”.
Three definitions deserve distinction, giving a framework for academic and political debate. These are: the definition of Wardle and Derakhshan contained in the 2017 Council of Europe Report4 on Media Disorder, the European Commission5 (2018) and the EU advanced Level Expert Group on False News and Disinformation on the Internet6 (2018). It is crucial to specify the EC due to its wider scope and its mention in the 2018 EU Code of Conduct for Disinformation.
Wardle and Derakhshan have defined misinformation as ‘the deliberate transmission of false information to harm a person, social group, organisation or country’. Misinformation occurs erstwhile “false information is made available but the intention is not to origin harm”. In turn, malinformation refers to "real information made available to harm a person, organisation or country", frequently by transferring information intended to stay private to the public sphere (so-called media leaks, harassment but besides "talk of hatred")7.
The EU advanced Level Expert Group on Disinformation (HLEG) in its study to the EC in 2018 defined disinformation as “falsifying, inaccurate or misleading information created, presented and disseminated for public harm or for profit”8.
The European Commission, in its 2018 Communication on combating misinformation on the Internet, considers that misinformation is “provable to verify false or misleading information created, presented and disseminated in order to get economical benefits or mislead the public, which may origin public harm. The public harm includes threats to democratic political processes and policy-making and to public goods specified as the protection of the wellness of EU citizens, the environment or security. Disinformation does not include reporting errors, satyrs and parodys or clearly marked biased messages and comments" (point 2.1. Scope)9.
In addition to these 3 key definitions of misinformation, there are inactive others in the literature of the subject, e.g. the definition of the influential investigator Van Hoboken and others who point to 4 elements common to different definitions: the veracity or misleading nature of information, social damage, the intention of the perpetrator and economical gain. The authors point out, not only that there is no clear legal definition of disinformation, but besides that it is created by, for example, EU institutions, but besides by all others, that it includes "a wide scope of forms of communication", ranging from "commercial advertising, political discussions, press articles, medical claims, conspiracy theories, blog posts, political advertisements, e-mails, social media posts, vlogs, and private media messages specified as WhatsApp, Telegram or Facebook".
These different "communication forms" have different legal qualifications and many of them qualified as "disinformation" have already been regulated, e.g. illegal content (denunciation, slander, offensive behaviour, any forms of electoral fraud). "unlawful expressions" (misleading reglas, unfair commercial practices, infringements of intellectual property rights, illegal press publications, etc.) and expressions prohibited by public law (various bans on advertising, media regulations, etc.) are besides palalised. However, it remains crucial to separate between illegal, illegal and harmful information. The second are not regulated by law and fall within the standard of protection of freedom of speech. Although they may be "perceived as socially undesirable", they stay within the limits of the law.
Decision makers have a problem with how to prohibit/abstain the spread of messages that may include "conspiracy theories", "mistakeful medical theories" (e.g. opposition to vaccination), "extreme political views". Hoboken and others propose that "in rule they form part of a healthy social debate where there must besides be area for misinformation protected by freedom of speech". Thus, “under the slogan of disinformation we find expressions that are regulated or prohibited by law, but besides unregulated, utilizing the protection of the right to freedom of expression. This word includes both defamatory, illegal press releases and “non-standard phenomena”, specified as “conspiracy themes” or “misprints”10.
The EU Code of Conduct on Disinformation in the Network, although it refers to the definition of HLEG, however, it importantly expands it and could possibly reduce freedom of expression to a greater extent. The Digital Services Act (DSA) recitals supply a broad definition of ‘illegal content’, including already existing laws sanctioning ‘MDM information’, e.g. the French law La Lutte Contre la Manipulation de l’Information of 2018. The Digital Services Act – as an EU Regulation – straight binds all the addressees of the standards contained therein without requiring additional implementation in the national legal order. This means that the provisions of this Regulation are besides binding on Polish citizens and take precedence over national laws.
The Digital Services Act in Article 3h defines ‘illegal content’ as ‘information which, in itself or by mention to the action, including the sale of products or the provision of services, does not comply with Union law or with the law of any associate State which complies with Union law, irrespective of the circumstantial object or nature of that law’11.
The above definitions, as well as another typologies, are based on the presumption that it can be determined what is or is not ‘true information’. Meanwhile, researchers in the field of communication science, for example, propose that this is hard and question the usefulness of specified terms.
The next presumption concerns the “harmful”ness of information. The harm can be done specifically to a person, a group of people or a full country. The EU's advanced Level Disinformation Group cites a "public handicap" covering "risks to democratic processes and political values which may in peculiar affect various sectors specified as health, science, education, finance and others"12.
It is besides worth noting that the EC has added to the "public harm" the threat to "policy-making processes". The harm does not gotta happen in order to qualify the information as misinformation. The definition uses the word ‘which can origin public harm’13.
In the case of the definition of Wardle and Derakhshan and the EU advanced Level Disinformation Group, the harm is 1 of the conditions for disinformation.
The differences besides concern intentions. The EC definition is broader, assuming it is adequate that there is an intention to deceive the public – not necessarily causing or aiming to origin damage, which is essential for another definitions.
The extended definition of misinformation by the EC besides refers to commercial information misleading in order to accomplish economical profit, e.g. advertising.
The Dutch, who have analysed the definitions of misinformation, claim that all 3 "are highly broad, insufficiently detailed and as specified not suitable for functioning as legal categories"14. These are political definitions and let associate States to interpret widely the phenomenon of misinformation, which threatens the fundamental freedoms of citizens.
For example, the Lithuanian Public Information Act, which in Article 19 prohibits the dissemination of "disinformation" and information of a slanderous, offensive or degrading character and honor of a man, defined disinformation as "intendedly distributed false information" (Article 2). In order to qualify a given message for misinformation, it must be: false, there must be a circumstantial intention and harm to a peculiar individual (excluding public harm). The legislator stressed the dissemination of misinformation, not its creation15.
In another countries governing the dissemination of misinformation, government was adopted, utilizing the wording of e.g. "false information" or "false news" (Austria, Croatia, Cyprus, Czech Republic, France, Greece, Hungary, Malta, Romania and Slovakia). The Hungarians introduced an organic ban in the Act “to spread misinformation during the state of emergency”.
Criminal codes in any countries prohibit misinformation in certain areas (e.g. in Poland, the Criminal Code was amended in 2023 and Article 132 k.k. in Chapter XVII regulates intelligence misinformation)16. Article 82 k.k. Malta considers it a crime to spread false messages and to "wrongly spread false messages that may disturb public opinion or disturb public order or public peace, or origin confusion among the general public or within certain classes of society". For this crime, up to 3 months of imprisonment is threatened17.
In France, Article 27 of the Freedom of the Press Act prohibits the dissemination of "false messages attributable to 3rd parties, if given in bad faith, have disturbed or may have disturbed public peace" (sanction in the form of fines of up to EUR 45 000).
In Croatia, the Act on Offences against Public Order and Peace finds it a crime to spread “false messages” which “disturb the peace and quiet of citizens” and for which there is simply a punishment of up to 30 days imprisonment (Article 16 of the Law on Offences against Public Order and Peace).
In Greece, Article 191 k.k. prohibits the dissemination of ‘false messages’ which origin ‘a fear of an unspecified number of persons or a peculiar ellipse or categories of persons who are thus forced to take unplanned action or to cease it, risking harm to the economy, tourism or defence capabilities of the country or to disrupt its global relations’.
In Slovakia, Article 361 k.k. considers it a criminal offence to ‘intended to make the danger of serious concerns among the population of a peculiar location or at least part of it by spreading false alarm messages’ (sanction in the form of imprisonment for up to 2 years).
W The Czech Republic prohibits "the intent of causing a serious threat to at least part of the population of a given area by spreading alarming messages that are false" (punishment up to 2 years imprisonment).
Cyprus k.k. prohibits the dissemination of "false news" or "messages which may possibly harm public order or public assurance in the State or its authorities or origin fear or anxiety among the public or in any way disrupt public order and order" (punishment up to 2 years imprisonment).
A number of regulations prohibiting the dissemination of certain messages were introduced in connection with the "COVID-19 pandemic" and the elections (e.g. in France, Article 1 of the 2018 Anti-Trading Act prohibits dissemination 3 months before the elections in an automated way of inaccurate or misleading messages that may affect the way citizens vote). Austrian k.k. prohibits the dissemination of "false news" during elections, which may affect voters (Article 264)18.
The laws adopted in European countries that criminalise misinformation – despite apparent difficulties in the precise creation of a legal definition – affect the fundamental rights of citizens, in peculiar the right to freedom of expression guaranteed by the Charter of Fundamental Rights and the European Convention on Human Rights and another global treaties relating to human rights, e.g. in the global Covenant on civilian and Political Rights. They can restrict not only freedom of expression but besides public debate.
Therefore, the Joint Declaration on Freedom of Speech and Elections19 of the United Nations peculiar Rapporteur on Freedom of Speech, together with representatives of the Organisation for safety and Cooperation in Europe and the 2020 Organisation of American States, expressed concern that "many countries have passed rules that, although formally justified", could "overly restrict freedom of speech, grow state control over the media, restrict freedom on the Internet". This reduces public debate, access to information that is essential to make an informed choice.
The country recommendations indicate that they should not only advance net access for society as a full and media pluralism (independent and diverse media), but besides refrain from restrictions on freedom of expression which would not meet the 3 essential requirements of global law in terms of freedom of expression, i.e. legality, legitimacy and necessity. Therefore, the censorship of preventive media, including administrative blocking of websites or net access, must not be applied; during the election, public individuals should be obliged to tolerate higher levels of criticism and control than average citizens; "there should be no general or ambiguous rules on misinformation specified as prohibitions on the dissemination of “liables” or “non-objective information”20. State actors should besides never usage their positions or powers of action to influence media relations excessively through administrative regulations and should supply media with wide access to authoritative sources of information.
It was pointed out that the restrictions on freedom of expression/freedom of the media during the elections should be based on "positive measures to prevent online misinformation, including the promotion of independent fact-checking mechanisms and educational campaigns for the skillful usage of digital media. States should avoid "adopted rules criminalising misinformation"21. Nor should online platforms be held liable for the dissemination of "MDM information" provided that they cannot interfere with these messages or, if, under a legally binding order, they were required to delete the content and did not do so22.
In 1999, the UN Human Rights Committee pointed out that journalists cannot be prosecuted for publishing "false news"23. In the case of a paper on the review of human rights in Cameroon, it was found that the prosecution of journalists for the publication of “false messages” only on the grounds that the message was “false” is simply a ‘clear violation’ of Article 19 of the Universal Declaration of Human Rights, which states that: “Every individual has the right to freedom of view and expression; this right includes the unfettered freedom of view and of seeking, receiving and communicating information and ideas, by all means and regardless of boundaries”24.
The European Court of Human Rights in the Salov v Ukraine25 besides ruled that it is not possible to prosecute for “dissemination of false information”. The Court referred to the Article. The 10th European Convention on the Protection of Human Rights, which refers to freedom of expression and states, inter alia, that “everyone has the right to freedom of expression. This right includes the freedom to have views and to receive and communicate information and ideas without interference from public authorities and regardless of state borders"26. The Court argued, inter alia, that discussion or dissemination of information should not be prohibited, even if there is simply a serious suspicion that it may be incorrect. The ECHR issued akin judgments in respective another cases raised by, for example, Polish applicants.
For example, in the case of Brzeziński v Poland in 2019 The Court found a breach of Article 10 ECHR, alleging to the Polish courts that ‘without any hesitation’ they considered the complainant’s statements ‘untrue and fair in the name of applicants as candidates for local elections’. It was besides noted that proving the truthfulness of the complainant’s statement, ‘requirement of the complainant to comply with stricter requirements in this respect than the standard of “required diligence” was unjustified in the light of the principles expressed in the Court’s case-law and the circumstances of the case’27.
The case law of the courts points to serious problems with prosecution for spreading misinformation under national laws. This mainly involves the hazard of violating constitutional and global standards for the protection of freedom of expression.
Agnieszka Stelmach
‘Miss-information, dez-information, mal-information. How a global censorship strategy arises"
1.European Commission, A multi-dimensional approach to information. study of the independent advanced Level Group on fake news and online information, Directorate-General for Communication Networks, Content and Technology, 2018, March, pp. 5 – 10.
2.European Union, EU Code of Practice on Disinformation, 2018, https://www.europeansources. info/record/eu-code-of-working-on-disinformation/ [accessed: 18 January 2024].
3.R.Ó Fathaigh, N. Helberger, N. Appelman, The periodicals of legally defining information, ‘Internet Policy Review’, Vol. 10, No. 4, 2021, November 4, https://policyreview.info/articles/analysis/perils-legally-defining-disinformation [accessed: 13 January 2024].
4.C. Wardle, H. Derakhshan, Information Disorder: Toward an interdisciplinary framework for investigation and policy making, Council of Europe, 2017, September, https://rm.coe.int/090000168076299d [accessed: 19 January 2024].
5.European Commission, Communication from the Commission to the European Parliament, the Council, the European economical and Social Committee and the Committee of the Regions. Combating disinformation online: a European approach, 26 April 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018DC0236, [accessed: 20 January 2024].
6.European Commission, A multi-dimensional approach to information.
7.Wardle, Derakhshan, Information Disorder, p. 20.
8.European Commission, A multi-dimensional approach to information, p. 11.
9.European Commission, Communication from the Commission to the European Parliament. This definition is not legally binding due to the fact that it is not included in a legal act, but in an expert study drawn up on behalf of the EC.
10.V. Hoboken, J. Appelman, N. Ó Fathaigh, et al., The legal framework on the distribution of information through net services and the regulation of political advertising [Report]. Dutch Ministry of Interioor and Kingdom Relations, 2019, December, pp.17 – 18, https://www.ivir.nl/pu-bliques/download/Report_Disinformation_Dec2019-1.pdf [accessed: 23 January 2024].
11.Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on the single marketplace in digital services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 2771), https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX%3A32022R2065 [accessed 28 January 2024).
12.European Commission, A multi-dimensional approach to information. p. 10.
13.European Commission, Communication from the Commission to the European Parliament.
14.Fathaigh, Helberger, Appelman, The periodicals of legally defining disinformation.
15. There.
16.Law of 6.06.1997. – Criminal Code (Journal of Laws of 2024 item 17, as amended).
17.Criminal Code (as amended by the Media and Defamation Act, 2018) Malta. (n.d.), https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=NIM:202100290 [accessed 31 January 2024].
18.Fathaigh, Helberger, Appelman, The periodicals of legally defining information.
19.OSCE.org, Joint Declaration on Freedom of Expression and Elections in the Digital Age, 2020, April 30, https://www.osce.org/files/f/documents/9/8/451150_0.0.pdf [accessed: 31 January 2024].
20. There.
21.There.
22. There.
23.UN Human Rights Committee (HRC), UN Human Rights Committee: Conclusion Observations: Cameraon, CCPR/C/79/Add.116, 1999, November 4, https://www.refworld.org/policy/polrec/hrc/1999/en/12521 [accessed: 3 February 2024].
24. Universal Declaration of Human Rights signed in Paris on 10 December 1948.
25.ECHR judgement of 6.09.2005, 65518/01, Salov v. Ukraine, HUDOC.
26th Convention on the Protection of Human Rights and Fundamental Freedoms drawn up in Rome on 4 November 1950 (Journal of Laws 1993 No. 61, item 284).
27.ECHR judgement of 25 July 2019, 47542/07, Brzeziński v. Poland, HUDOC, paragraphs 57 to 58.
