This analysis looks at relevant national and European case law, where available, to determine how courts have interpreted (or, in some cases, made up for the lacunae in) the legislation in the field of fake news and disinformation in three countries. This is especially important since there has been a sharp rise in disinformation and fake news since the COVID-19 pandemic, especially with conspiracy theories regarding vaccination (otherwise called the ‘infodemic’). The aim of this section is to carry out a review of existing national (Malta, Romania and Spain) and European case law, where available, and present some of the challenges and best practices encountered by the judicial system in addressing cases of fake news dissemination and/or disinformation.
Main research questions addressed
● What major disinformation-related cases have occurred in Malta, Romania and Spain?
● How have Malta, Romania and Spain addressed these disinformation-related cases?
While previous sections of this chapter have dealt with the legislative tools utilised in Malta, Romania and Spain to tackle disinformation, the current section looks at relevant case law, where available, to determine how courts have interpreted (or, in some cases, made up for the lacunae in) the legislation in each country. This is essential since there has been a sharp rise in disinformation and fake news since the COVID-19 pandemic, especially with conspiracy theories regarding vaccination (otherwise called the ‘infodemic’).
Given the recent nature of the infodemic, as well as the relatively modern phenomenon of the quick spread of false information through social media, there is a severe dearth of case law in the European Union directly on disinformation, including in the European Court of Human rights (ECtHR) and in the Court of Justice of the European Union (CJEU). A few characteristics of the jurisprudence surrounding online disinformation and fake news must be highlighted.
Firstly, there is a wealth of relevant case law that indirectly deals with disinformation, such as lies and falsities (created by state and private actors) that result in a violation of human rights. This is especially true with case law related to journalists and editors regarding the burden of responsibility they bear in ensuring the accuracy of published information. However, case law dealing with individuals spreading lies has only really been tackled in the realm of defamation. Indeed, the first mention of ‘fake news’ indeed being introduced by the court without any prompting from the parties involved in the case of Brzeziński v. Poland (ECtHR App. No. 47542/07, 2019). In this case, an election booklet criticising and/or defaming government members published by a local politician was characterised as false and defamatory information and ruled as such by local courts. When examined by the ECtHR, the court looked at the issue in terms of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The ECtHR noted that while it was undoubtedly necessary to ensure that a forthcoming election not be influenced by ‘fake news’, the way the local courts went about doing so had a chilling effect on the applicant’s right to the freedom of expression.
Secondly, the spread of fake news and disinformation on the internet has generally been dealt with in light of the specific features of the internet, i.e., its amplifying effect. For example, in Cicad v Switzerland[4], a case where an allegation of antisemitism was made by an association on its website, the association was ordered to remove the content since it would be visible to an audience far more expansive than its usual offline audience (ECtHR App. No. 17676/09, 2016). The nature of the allegation being made online rather than offline was a deciding factor in the Court asking for the content to be removed.
Thirdly, the nature of the ‘speech’ being made is also relevant. One of the vectors used in the spread of fake news is through users of social media highlighting a post for other users by ‘reacting’ to it, such as by ‘liking’ it or sharing it. In the case of Melike v Turkey, the Court considered a person’s use of pressing the ‘Like’ button on social media vis-à-vis sharing a post, and also took into account the size of the audience that takes note of a user pressing the ‘Like’ button (ECtHR App. No. 35786/19, 2021). In this case, the applicant’s use of the button on a post containing virulent political criticism was seen in terms of the penalty imposed (she was fired from her post), with the penalty being disproportionate and thus violative of her right to freedom of expression under Article 10 of the ECHR.
Keeping in mind the nature of jurisprudence on fake news and disinformation, this chapter will now examine important cases in Spain, Malta, and Romania.
Spain is an important country to consider when dealing with disinformation, specifically with the removal of online content as a tool to fight disinformation. It was through the case of Google Spain SL v. Agencia Española de Protección de Datos, otherwise known as Google v Spain, that the “derecho al olvido” (right to be forgotten) was first devised by the CJEU. The issue at the heart of this case was the removal of content that was no longer accurate (CJEU (Grand Chamber), Case C-132/12 ECLI:EU:C:2014:317). The passing of this judgment ensured that the right to be forgotten was incorporated in the General Data Protection Regulation (GDPR), which was only being drafted when the judgment was passed. In particular, the Court held that:
It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed (CJEU (Grand Chamber), Case C-132/12 ECLI:EU:C:2014:317, para 93).
Further, the court laid down the context surrounding the right to be forgotten in the following terms:
In the light of the foregoing, when appraising such requests made in order to oppose processing such as that at issue in the main proceedings, it should in particular be examined whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name. In this connection, it must be pointed out that it is not necessary in order to find such a right that the inclusion of the information in question in the list of results causes prejudice to the data subject ((CJEU (Grand Chamber), Case C-132/12 ECLI:EU:C:2014:317, para 96)
This right now exists in the GDPR under Article 17 (Right to erasure (‘right to be forgotten’)) and Article 19 (Notification obligation regarding rectification or erasure of personal data or restriction of processing). This is one of the ways that disinformation regarding specific individuals can be fought – by invoking the right to erasure in case of false information.
The other aspect of the fight against disinformation, that of ‘spreading lies’, has recently seen some movement in Spain. In early November 2022, a member of the Guardia Civil, a law enforcement agency, was sentenced to 15 months in prison, along with a fine, by a local court in Barcelona for falsely claiming that a video he linked to was showing an underage migrant trying to rape a woman (Jones, 2022). The original video was from China, but was viewed over 22,000 times along with the law enforcement officer’s false description.
Disinformation has become a real issue in Spain; a recent survey on the proliferation of false news on Covid-19 concluded that “the vast majority of those surveyed attributed a high level of repercussion to the hoaxes related to COVID-19, considering the social impact generated by the resulting alarm situation to be serious or very serious” (Torres et al., 2021). On the other hand, there has been concern shown about the use of the Penal Code to criminalise jokes as well, with calls by civil society organisations for law enforcement to ‘refrain from using criminal prosecution and other coercive measures as the primary means of combating supposedly false or harmful information online’ (Article 19, 2020).
While the country has not been affected by disinformation campaigns during Covid-19 to the extent of others in Europe, Malta does not have a good track record with protecting media freedom, let alone tackling fake news and disinformation. A Venice Commission report in 2018 noted (Venice Commission, 2018):
The media and civil society are essential for democracy in any state. Their role as watchdogs is an indispensable precondition for the accountability of Government. The delegation of the Venice Commission had the impression that in Malta the media and civil society have difficulty in living up to these needs (Venice Commission, 2018, para 135).
This is important to note given the recent disinformation campaigns levelled against journalists in Malta, as noted by the International Federation of Journalists (International Federation of Journalists, 2021). Malta has instead taken the tack of amending the provision criminalising the spreading of false information under Art. 82 of the Criminal Code by expanding it through the Media and Defamation Act 2018. Initially, this article only criminalised the act of maliciously spreading false news, but through the amendment in 2018, Malta has also levied penalties of imprisonment and a fine if this offence “has contributed to the occurrence of any disturbance”, clearly planning to include the spread of fake news and disinformation.
This was likely a reaction to the death of Daphne Caruana Galizia, a Maltese journalist, near the end of 2017. Indeed, this event has been the focus of several disinformation campaigns (see section 1.3), due to both the political nature of the subject matter of the journalist’s reportage and the shocking nature of her death. Having said that, no judgments have been passed in Malta on the basis of Art. 82 of the Criminal Code, though several complaints have been filed by the police, including one recently by the President of Malta (Malta Independent, 2022). How Malta proceeds with such complaints from a judicial perspective is yet to be seen.
Disinformation has played a significant role in Romania during Covid-19, specifically concerning vaccine hesitancy. This hesitancy has been identified as one of the key reasons for the fourth wave of the pandemic in Romania, both by news (Euronews, 2021) and scholarly sources (Dascalu et al., 2021). As one source notes:
[…] throughout the pandemic, under the pretext of presenting “balanced viewpoints”, major news outlets generously featured representatives of the anti-vaccine movement and conspiracy theory advocates almost on a daily basis(Dascalu et al., 2021, para 2).
The state of emergency declared in Romania on 16 March 2020 allowed the government to take down instances of fake news (a policy that the government implemented very proactively)(Euractiv, 2020); this was clearly not very effective in curbing anti-vaccination conspiracies. This was because major sources of this disinformation included religious leaders and politicians, with one Bishop being placed under criminal investigation for spreading disinformation based on his anti-vaccination comments (Bdnews2.com, 2021). As the article notes, this disinformation led to Romania’s vaccination rate being under 30% in late 2021 (vis-à-vis the European average of 81%), resulting in a devastating fourth wave of Covid-19 with the highest per-capita death rate in the world.
In conclusion, one of the major problems with using case law in determining the effectiveness of legislative tools is that cases of disinformation or fake news are tough to prosecute for several reasons. Firstly, laws that combat disinformation via the route of defamation rely on having someone to prosecute or assign blame to for spreading false information. This is difficult simply given the nature of the internet. To take the example of Malta, there was clearly a disinformation campaign against journalists who reported on the consequences of Daphne Caruana Galizia’s death. However, this disinformation campaign was perpetrated through fake accounts and websites, making it difficult to pin the blame on any individual.
Secondly, given that these laws fall under the criminal code of most countries, it also becomes necessary to show that the person spreading the fake news did so ‘maliciously’ or with the intent to cause harm. This is difficult to determine even when done on a case-by-case basis. For example, in Romania, would it be possible to determine whether the religious leaders or politicians wanted to cause harm by protesting against vaccinations?
Thirdly, ECtHR case law makes it clear that restricting someone’s right to the freedom of speech can only be done keeping the specific context of the situation in mind, which means that a blanket ban (or internet shutdown) is, quite rightly, illegal. However, given the scope of the problem, it would be impossible to prosecute every a single person who “Liked” or shared a post that happens to contain false information without bogging down the entire judicial system.
Given the fact that disinformation and fake news are rapidly becoming the primary factors in undermining democratic processes and human rights, it is incumbent upon the judiciary, in tandem with the legislature, to determine the way forward despite these challenges. We will likely observe significant progress here in the near future simply because of the amount of effort dedicated to solving the issue of disinformation worldwide, but this will be a daunting process (European Parliament, 2021).
1. Article 19. (2020). Spain: Concerns as Penal Code used to criminalise jokes and misinformation about coronavirus. Article 19. https://www.article19.org/resources/spain-penal-code-used-to-criminalise-jokes-and-misinformation-about-coronavirus/
2. Bdnews2.com.(2021). In Romania, hard-hit by COVID, doctors fight vaccine refusal. Bdnews2.com. https://bdnews24.com/world/europe/in-romania-hard-hit-by-covid-doctors-fight-vaccine-refusal
3. CJEU (Grand Chamber). (2014). Case C-132/12 ECLI:EU:C:2014:317.
4. Dascalu, S., Geambasu, O., Valentin Raiu C., Azoicai, D., et al. (2021). COVID-19 in Romania: What Went Wrong?. Front. Public Health. doi: 10.3389/fpubh.2021.813941
5. Euractiv. (2020). Romania shuts down websites with fake COVID-19 news. Euractiv. https://www.euractiv.com/section/all/short_news/romania-shuts-down-websites-with-fake-covid-19-news/
6. Euronews (2021). Why did Romania's vaccination campaign derail after such a good start?. Euronews. https://www.euronews.com/my-europe/2021/06/08/why-did-romania-s-vaccination-campaign-derail-after-a-successful-start
7. European Court of Human Rights. (2016). App. No. 17676/09.
8. European Court of Human Rights. (2019). App. No. 47542/07.
9. European Court of Human Rights. (2021). App. No. 35786/19.
10. International Federation of Journalists. (2020). Malta: Journalists and public figures harassed in disinformation campaign. International Federation of Journalists. https://www.ifj.org/media-centre/news/detail/category/press-releases/article/malta-journalists-and-public-figures-harassed-in-disinformation-campaign.html
11. Jones, S. (2022). Spanish police officer sentenced after posting fake rape video on Twitter. The Guardian. https://www.theguardian.com/world/2022/nov/08/spanish-police-officer-sentenced-after-posting-fake-video-on-twitter
12. Malta Independent. (2022). President’s office files police report on fake article. Malta Independent. https://www.independent.com.mt/articles/2022-07-28/local-news/President-s-office-files-police-report-on-fake-article-6736244815
13. Torres, M. J., Martinez-Amanasa, A., et al. (2021). Infodemic and Fake News in Spain during the COVID-19 Pandemic. Int J Environ Res Public Health. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7918895/
14. Venice Commission. (2018). Malta - Opinion on Constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement, adopted by the Venice Commission at its 117th Plenary Session - CDL-AD(2018)028-e.