Fake news, protection of the right to honour and liability of digital platforms in the civil sphere

Barely a week ago, the ruling of the 6th section of the Criminal Division of the Barcelona Provincial Court, which contained the first conviction in Spain for disseminating fake news, was made public through the media. In this sentence, a person was sentenced to 15 months in prison for a crime against fundamental rights for disseminating via Twitter a video of an assault on a woman attributed to unaccompanied minors (MENA) from a centre in Canet de Mar, accompanying the recording with the comment “here is the video of the Moroccan MENA from Canet de Mar. We are going to give them a little allowance until they are 23 years old, the children of Pedrito Piscinas. By the way, then, to make matters worse, the rape, these hooligans and these packs of Moroccans will not appear in the media”.

The question is that the facts really happened, but not in Canet de Mar, but in China, nor were they committed by the person or the description that the twitter user published. The sentence, which we have not yet been able to access, since it has not been published, includes the agreement of conformity and sentences the accused to 15 months in prison, a fine of 9 months with a daily fee of 6 euros and special disqualification for educational profession or trade, in the field of teaching, sports or leisure time for a period of 5 years exceeding the sentence imposed, as well as imposes the convicted to close their profiles on social networks with a ban on opening new ones with discriminatory content. New technologies and the information society have certainly brought about a radical change in access to information, as well as the atomisation of its sources, which are not always reliable.

Nowadays, the broadcasting of any type of information can have great repercussions, both for specific individuals and for the general population. And often the information is published in a way that is intentionally biased or manipulated to achieve certain ends by those who promote the communication.

what kind of offence constitutes fake news?

As the technical secretariat of the Attorney General’s Office warns, taking into account the content of fake news, as well as the intention behind its dissemination, it can constitute various types of crime, such as hate crimes (for example, falsely attributing criminal acts to a specific social group on social networks); discovery and disclosure of secrets; offences against moral integrity; public disorder (for example, tweets with simulated alarm messages that require the activation of public emergency services); slander and libel; offences against public health, frauds or intrusion (e.g. claims of potential curative effects of certain substances that are not scientifically proven or are ineffective); offences against the market and consumers (e.g. the case of manufacturers or traders who, in their offers or advertising of products or services, make false allegations or state untrue characteristics about them).

However, apart from conduct which can be classified as criminal and which can give rise to criminal prosecution, there is also a purely civil mechanism available to redress the damage caused by false information. Before analysing the various mechanisms available to the injured party, it should be made clear that the concept of “false news” is equivalent to untruthful information.

However, this guarantee of truthfulness does not consist of the obligation to know with absolute certainty the authenticity of the information on the part of whoever publishes or disseminates it, but rather the existence of due diligence on the part of the communicator in his intention to verify it within reason (Constitutional Court Ruling 6/1998).

The current regulatory framework is made up of a series of rules of diverse nature and objectives. In this regard, we can highlight:

• Law 13/2022 of 7 July, General Law on Audiovisual Communication. This law establishes a general regulatory framework establishing that “current affairs news programmes (…) shall respect the principles of truthfulness, …”and regulates the so-called principle of media literacy, so as to “enable citizens of all ages to use the media effectively and safely, to access and critically analyse information, to discern between facts and opinions, to recognise fake news and disinformation processes”.
• Organic Law 2/1984 of 26 March 1984, which regulates the right of rectification, provides that “any natural or legal person has the right to rectify information disseminated by any means of social communication about facts that allude to him/her, which he/she considers inaccurate and whose dissemination could cause him/her harm”

This rule provides for a special process of rectification if, having been previously requested to do so, the media outlet does not proceed to rectify and expressly provides that “the purpose of this process is compatible with the exercise of criminal or other civil actions that may be brought by the injured party as a result of the facts that have been disseminated”.

• With regard to business activities, Article 27.3 of Law 3/1991 of 10 January 1991 on Unfair Competition states that “The following practices are also considered unfair because they are misleading: Transmit inaccurate or false information about market conditions or about the possibility of finding the good or service, with the intention of inducing the consumer or user to contract it under less favourable conditions than the normal market conditions.”

In this case, we find a very close precedent when, at the beginning of the war between Russia and Ukraine, there was a misrepresentation about a possible shortage of supply sources. This means altering the market to the extent that such misinformation can generate alarm that motivates citizens to stockpile certain goods, causing a shortage of certain products with the consequent increase in prices that would not otherwise have occurred.

Article 9 of this law, which deals with acts of denigration, states that “it is considered unfair to make or disseminate statements about the activity, services, establishment or commercial relations of a third party that are capable of undermining its credibility in the market, unless they are accurate, true and pertinent”

One of the problems that may arise in some cases with fake news is the conflict between the right to freedom of expression and criticism and the right to honour that any person possesses. Traditionally, the right to information has prevailed, although it should be noted that there is no right to disinformation, so choosing the appropriate means of complaint will be fundamental to compensate the possible damage received by the injured party.

Focusing on purely civil actions and leaving aside criminal actions, we can highlight the following means of protection:

• The purely patrimonial action of claiming effective damages through the general route of Article 1902 of the State Civil Code which regulates non-contractual liability. This precept establishes that “Whoever by action or omission causes damage to another, through fault or negligence, is obliged to repair the damage caused”.

The exercise of such an action will entail the need to prove, among other things, the damage caused. This damage may be pecuniary or non-pecuniary and, in the first case, it may be consequential (actual damage to the injured party’s assets) or loss of profit (profit that the injured party has ceased to obtain). The courts are very restrictive in the estimation of loss of earnings, given that they do not estimate sufficient possible or reasonably expected earnings, but rather earnings that would have been obtained with a certain objective probability if the damage had not occurred.

On this point it is worth noting, for example, the case of a well-known elite footballer who was accused in mid-2019 of raping a woman, which led to the suspension of many advertising campaigns of his sponsors, with the corresponding impact that this may have on social networks that are fully patrimonialised, so that the loss of followers or subscribers automatically implies a loss of sources of income, apart from the moral and reputational damage. Although it is true that in this case it was not strictly speaking false news, but an alleged false accusation of a crime (the authorities filed a formal accusation with the courts of false denunciation and extortion) which was reported in the media, it serves to highlight how certain news stories can affect the financial and moral sphere of a person and the means available to them to compensate for the possible damage suffered.

• The action provided for in Organic Law 1/1982 of 5 May 1982, on the civil protection of the right to honour, personal and family privacy and one’s own image. This law provides for protection through the adoption of measures to put an end to the unlawful intrusion, such as compensation for damages or the appropriation by the injured party of the profit obtained by the person causing the intrusion.

As we have already mentioned, the general rule imposes that in order to claim for damage, it must be fully accredited, and this can be either consequential damage or loss of profit. However, article 9.3 of the law itself states that in these cases of intrusions “the existence of damage will be presumed provided that the illegitimate intrusion is accredited. Compensation shall be extended to moral damage, which shall be assessed according to the circumstances of the case and the seriousness of the injury actually caused, taking into account, where appropriate, the dissemination or audience of the medium through which it occurred”.

It is particularly important to highlight separately the possible case of false news that may affect the right to honour of legal persons. The courts understand honour to mean “the good reputation of a person, protecting him or her against expressions or messages that bring him or her into disrepute by discrediting or belittling him or her, or that are held in the public mind to be affronting”. With regard to legal persons, Constitutional Court Ruling 139/1995 of 26 September 1995 states that “a legal person may also see its right to honour harmed through the dissemination of facts concerning its entity, when it defames it or causes it to be detracted fromthe consideration of others”.

The means of protection for the injury suffered by the legal entity are basically three: civil proceedings (including the right of rectification) and criminal proceedings. Focusing on the civil route, we must distinguish the liability of the actual author of the content; of the users of social networks (RRSS) who contribute to the dissemination (not well defined by case law) and the liability of the so-called social platforms. With regard to the liability of social platforms, it is necessary to take into account the provisions contained in Law 34/2002, of 11 July, on information society services and electronic commerce.

There are more and more social platforms and citizens make more and more use of them to express their opinions and to post information or facts that may not be truthful and may cause harm to persons or entities. According to this regulation, social networks could be held responsible for the content they host on their platforms, provided that:

• Had actual knowledge of the unlawfulness or harmful nature of the interference, and
• They have not acted diligently to remove or block such content.

The law states that “the service provider will be understood to have the effective knowledge referred to in paragraph a) when a competent body has declared the unlawfulness of the data, ordered its removal or that access to it is made impossible, or the existence of the injury has been declared, and the provider was aware of the corresponding resolution, without prejudice to the procedures for detection and removal of content that providers apply under voluntary agreements and other means of effective knowledge that may be established.”

However, the above does not exclude, according to the SC, “that knowledge of the unlawfulness can be proven in some other way, since we are not dealing with an exhaustive list, but rather a presumption ad exemplum which, a sensu contrario, would not prevent proof of actual knowledge by any other means”. Youtubers, streamers, casters, bloggers, content creators in general, artists, athletes, politicians, businessmen, socialites, large companies, and even anonymous individuals and small and medium-sized companies, religious entities, sports clubs and federations, foundations, people are increasingly exposed to public opinion, which is fundamentally shaped by the facts and news that arrive through different media. The attribution of a false fact or orchestrated disinformation processes can lead to a high level of financial and moral damage if they are not dealt with swiftly and through the most appropriate mechanism.

AddVANTE, through its litigation department, has highly qualified and experienced professionals to design and direct the best possible strategy to deal with disinformation processes and any resulting damage to property and honour. Be sure to seek appropriate advice on any concerns you may have in these cases.