Written by Sofia Verza, PhD candidate at the University of Perugia

“Fake news” was named “word of the year” in 2017 by the UK Collins Dictionary: according to the dictionary, the word’s use increased by 365% since 2016, indicating “false, often sensational, information disseminated under the guise of news reporting”. According to many sources and to the president of the United States himself, the word has been invented by Donald Trump, in the context of its various statements attacking the mainstream media. The appropriation of the usage and negative tone associated with the term “fake news” is crucial since the amplification of the fears related to the disinformation phenomenon rapidly led many countries to look for regulations tackling online misinformation.

“When you control the language, you control the message”1

The general use of the term “fake news” can be misleading, as the phenomenon includes a range of different types of misinformation. Moreover, there seems to be no clear way to tackle it, since it poses serious risks of curbing freedom of expression. In this regard, particular attention should be focused on the authority in charge of individuating the fake news. Should such power be in the hand of private companies such as Facebook and Twitter? Should it instead be a responsibility of state authorities? And finally, in the latter case, should it be an executive or judicial authority?

Recently, different European countries have addressed the disinformation issue adopting different regulatory approaches. In Germany, the so-called “NetzDG” law entered into force on January 2018- provides that online platforms like Twitter and Facebook should block the undesirable contents in 24 hours from their identification, otherwise risking a fine up to 50 million Euros. In France, last January, president Macron proposed stricter regulations against online disinformation during electoral campaigns. On April 26, 2018, the European Commission released the communication “Tackling online disinformation: a European Approach”. Among other indications, the Communication underlines that “fact-checkers' credibility depends upon their independence and their compliance with strict ethical and transparency rules”. However, a coalition of human rights groups noticed that the EC communication fails to underline the potential implications for human rights of the measures tackling online disinformation.

In the process leading to the EC Communication, on March 12, 2018, the European Commission published the results of a Eurobarometer on fake news, where individuals were asked about their views on "fake news". Respondents, however, were told from the beginning that "news or information that misrepresent reality or that are even false" are called “fake news”. The key findings of the survey are as follows:

  • Respondents perceive traditional media (as opposed to online media) as the most trusted source of news, ranking them as follows: radio (70%), television (66%), printed newspapers and news magazines (63%);
  • 37% of the respondents come across fake news every day or almost every day and 71% feel confident in identifying them;
  • 85% of respondents perceive fake news as a problem in their country and 83% perceive it as a problem for democracy in general;
  • In respondents’ view, journalists (45%), national authorities (39%) and the press and broadcasting management (36%) should be the main responsible for stopping the spread of fake news.

As to the Italian legal system, there is no specific law on fake news. Article No. 656 of the Italian Criminal Code punishes the publication and dissemination of false, exaggerated or biased news which may undermine public order. It provides detention penalties as well. On February 2017, a law proposal against fake news was presented in the Italian Parliament, but the legislative process is in a deadlock. However, such proposal was considered to be repressive and likely to cause widespread forms of censorship, as it proposes penalties of up to 2 years of detention.

The Protocol

On January 2018, the Italian Interior Ministry enacted the “Operating Protocol for the Fight Against the Diffusion of Fake News through the Web on the Occasion of the Election Campaign for the 2018 Political Elections”, that were scheduled on March 4. Through this document, Ministry Marco Minniti announced that Postal Police will be in charge of fact-checking fake news, autonomously or following people’s reports of hoaxes through a dedicated portal, and to report the alleged crime to the judicial authority. This move immediately caused concern in the public debate.

According to the Ministry’s protocol, the police should “as long as it is possible, verify the information, in order to focus only on manifestly biased and unfounded news, as well as to that news that is openly defamatory”. Pausing on this first part of the Protocol, it is worth to underline the vagueness of terms like manifestly and openly, granting the Italian police great discretionary powers in evaluating what is biased, unfounded and defamatory. Moreover, differently than the provision of Article 656 of the Italian Criminal Code, quoted above, there is no need to potentially undermine public order in order for the content to be processed by the Police, while the Protocol contains references to defamation - which is a criminal offence under Article 595 of the Italian Criminal Code. Thus, the new process of tackling fake news may enhance defamation disputes: in Italy, this crime can only be prosecuted following the interested person’s complaint. Therefore, attributing to the Police the duty to look for defamatory contents is not compatible with the structure of the Italian criminal provisions on defamation.

Furthermore, the Protocol specifies that the work of fact-checking would be carried on by a dedicated team of the National Centre against Online Crime for the Protection of Critical Infrastructures (Centro Nazionale Anticrimine Informatico per la Protezione delle Infrastrutture Critiche): through the use of Open Source Intelligence (OSINT) techniques, the team is asked to identify the existence of specific indicators for qualifying an information as “fake”, “with the maximum certainty possible”. A partial list of such indicators can be found in the Protocol, namely the existence of official denials, false content already proved by objective sources, the provenance of the alleged fake news from not accredited or certified sources. Again, the protocol leaves the Postal Police great discretionary powers for deciding what an objective, accredited or certified source is. It can, therefore, be observed that Italy decided to entrust the executive powers of the responsibility to decide what is a “genuine information”, enabling them to evaluate if and which online contents are fake. Moreover, according to the Interior Ministry’s Protocol, the police should propose an “institutional counter-narrative”, that should be disseminated through the social channels of the Postal Police, such as its website and Facebook page.

In March 2018, David Kaye– the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression- voiced his concerns regarding the new Italian approach to tackling fake news. He stressed that the Italian so-called “Red Button” may be incompatible with international law, for example with Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protecting everyone’s right to maintain an opinion without interference and to seek, receive and impart information and ideas of all kinds. One of the Rapporteur’s concerns is the possible incoherence with the criteria of legality, necessity, and proportionality of certain provisions limiting freedom of expression, as provided by Article 19. Kaye moreover stressed that freedom of expression also “protects information and ideas that may shock, offend, and disturb”- as underlined in the 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda. Finally, the Rapporteur wrote he is concerned the Protocol will “confer excessively broad discretion on the government to prosecute statements that are critical of public and political figures”.

Other supranational conventions such as the European Convention on Human Rights (Art. 10) and the Charter of Fundamental Rights of the European Union (Art. 11) provide the right of individuals to hold opinions and to receive and impart information and ideas "without interference by public authorities and regardless of frontiers". Entrusting the executive power, and in this specific case, the police of the power of evaluating what is fake and what is not, which news can be catalogued as disinformation and which not, creates a short circuit in the principle of separation of powers. Under this principle, this kind of evaluations should- if necessary- be left to the judicial power.

Practical consequences

The Postal Police’s portal is currently not working, since March 2018. Osservatorio Balcani e Caucaso Transeuropa, Valigia Blu and Motherboard Italia (Vice), three Italian media outlets, asked the State Police press office for clarifications: may this fact mean that the Postal Police is acting solely at its own initiative, and external reports of hoaxes are not required anymore? Moreover, the Protocol particularly emphasized the portal’s role in the lead up to the Italian 2018 political elections. Did the procedure stop working after the vote for a specific reason? Up to now, they received no significant answer.

However, on May 2018 the Italian reply to the Rapporteur’s recommendation was published: among other things, the Italian authorities explained that some compressions of “basic individual needs” are part of a “damage containing” policy, by which “a higher requirement is protected while other simply legitimate requirements of the individual are temporarily compressed”. Moreover, the Italian authorities wrote that on March 21st, 2018, ANSA (the Italian National Agency of Associated Press) reported that “the red button was solely aimed at facilitating, during the pre-electoral period, the possibility for the citizens of reporting the fake news”. The authorities confirmed this procedure has been concluded some days after the general elections, “since it had been conceived for the electoral period”. Moreover, they added the Police will carry on their activity of investigating and counter-reporting fake news. In the current situation of political uncertainty, it would be interesting to understand if- in case of a new electoral campaign in Italy- the “red button” would be restored.

Furthermore, there is little transparency behind the operations made by the Postal Police: conversely to the indications by the Interior Ministry in his Protocol, providing the publication of “punctual denials” on the police website when a fake content is identified, such activity can be traced only until March 9, 2018 (namely, immediately after the Italian elections). Such lack of transparency is confirmed reading an article of Il Corriere della Sera, one of the main Italian newspapers, which reported that 128 fake news were addressed by the Postal Police by the end of February 2018. However, other news outlets criticized Il Corriere since no institutional report confirming this data can be found.

Alternative approaches

The efforts of various governments as well as of the European institutions in combating the fake news issue do not however seem to correspond to the scale of the fake news problem as described, for instance, in a 2018 study by the Reuters Institute for the Study of Journalism, according to which the so-called fake news have a limited web reach (less than 1% of the online population in Italy), and the time spent on false news websites is far lower than the time spent on mainstream news websites.

Moreover, it is of the utmost importance to underline the role of media literacy in addressing the issue of disinformation: it is a key tool to strengthen the public’s ability to discern, which should be actively supported by public authorities. As a report by the European Policies Initiative (EuPI) confirms, the resilience to post-truth and disinformation is directly proportional to the levels of media freedom, quality and level of education, interpersonal trust, trust in society and the use of e-participation tools by citizens. Therefore, long-term policies addressing the educational system rather than more simplistic top-down regulations should be preferred, despite their evident higher costs.

1  G. Lakoff (2004), Don’t think of an elephant! : know your values and frame the debate, Chelsea Green Publishing.

This legal analysis was published on May 22, 2018, and updated on May 29 following the publication of the answer by the Italian Ministry of Foreign Affairs to the remarks raised by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

Tags: Fake news and disinformation Freedom of expression Italy
Publication Date: 21/05/2018