“Fake news”
| Date | 01 December 2017 |
| Author | Tarlach McGonagle |
| DOI | 10.1177/0924051917738685 |
| Published date | 01 December 2017 |
| Subject Matter | Column |
Column
‘‘Fake news’’: False fears or
real concerns?
Tarlach McGonagle
Institute for Information Law (IViR), Faculty of Law, University of Amsterdam, Amsterdam, the Netherlands
‘‘Fake news’’ has become a much-used and much-hyped term in the so-called ‘‘post-truth’’ era that
we now live in. It is also much-maligned: it is often blamed for having a disruptive impact on the
outcomes of elections and referenda and for skewing democratic public debate, with the 2016 US
Presidential elections and Brexit referendum often cited as examples. ‘‘Fake news’’ has also been
flagged for fuelling propaganda and ‘‘hate speech’’ and even violence. ‘‘Pizzagate’’ is an infamous
example of exceptional circumstances in which a false news story had a central role in a shooting
incident. In December 2016, a man in Washington D.C. took it upon himself to ‘‘self-investigate’’
a story (a completely unfounded conspiracy theory) that the Hillary Clinton campaign team was
running a paedophile ring from the premises of a pizzeria. Shots were fired and he was arrested and
charged with assault and related offences.
1
Given all this bad press, it is perhaps little wonder that ‘‘fake news’’ has become a major
preoccupation for international organisations, national law- and policy-makers, the media and
media actors, civil society and academia. But what exactly is ‘‘fake news’’ and what is all the
fuss about? In addressing these questions, this column will also consider historical and contem-
porary perspectives on the term and its relationship with human rights.
Definitional dilemmas
‘‘Fake news’’ is information that has been deliberately fabricated and disseminated with the
intention to deceive and mislead others into believing falsehoods or doubting verifiable facts;
2
it is disinformation that is presented as, or is likely to be perceived as, news. Unlike many other
Corresponding author:
Tarlach McGonagle, Institute for Information Law (IViR), Faculty of Law, University of Amsterdam, Amsterdam 1090,
the Netherlands.
E-mail: t.mcgonagle@uva.nl
1. See further, Alan Yuhas, ‘‘Pizzagate’ Gunman Pleads Guilty as Conspiracy Theorist Apologizes over Case’ The
Guardian (25 March 2017) last
accessed 23 September 2017.
2. The first prong of this definition has been borrowed, almost verbatim, from the Ethical Journalism Network. See
ethicaljournalismnetwork.org/tag/fake-news> last accessed 23 September 2017.
Netherlands Quarterly of Human Rights
2017, Vol. 35(4) 203–209
ªThe Author(s) 2017
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types of information, news plays a particular role in democratic societies: it is a key source of
accurate information about political and societal affairs, which informs public opinion-making and
deliberative processes. If news is ‘‘fake’’, it misinforms the public and democratic debate is
polluted at the source.
‘‘Fake news’’ is a very catchy term. It trips off the tongue. The economy and simplicity of the
two-word combination make it a real buzz-word and a great sound-bite. It instantly conjures up a
variety of meanings and can thus be used very flexibly. But th erein lies the rub. Behind the
apparent simplicity of the term lurks a potentially vast range of qualitatively different types of
expression. It could cover anything from playful hoaxes to belligerent propaganda or incitement to
violence. This is not only unhelpful from a legal perspective, it is highly problematic. Calls to
regulate or criminalise ‘‘fake news’’, which are often prompted by one or more high-profile
incident(s) involving extreme forms of ‘‘fake news’’, tend to overlook the variation behind the
term. Concern about particular sub-sets of ‘‘fake news’’ should not inform law-making in respect
of a more generic whole. Hard cases make bad law and an entire village should not be burned to
roast a pig.
Another problem arising from the absence of clear definitions is that national laws criminalising
‘‘fake’’ or ‘‘false’’ news are susceptible to mis-use and abuse through arbitrary interpretation and
enforcement. Free speech NGOs like ARTICLE 19 report that such laws are often used by
governments across the world to stifle independent and critical media, thereby creating a chilling
effect on freedom of expression and public debate.
It is therefore essential that we stand back from the term and distinguish between the types of
expression which it purportedly cov ers. Clear-sighted, critical judgment is called for because
whereas some of the types of expression in question may be harmful, many of them certainly are
not. Accordingly, some of them may be subject to the recognised limitations to freedom of
expression under international human rights law, whereas others will enjoy robust levels of pro-
tection. For instance, false stories and conspiracy theories presented as news and which constitute
racist expression, incitement to hatred or Holocaust denial will not benefit from protection.
3
Far-
and extreme-right-wing groups are frequently associated with this kind of ‘‘fake news’’, with
Breitbart News having achieved particular notoriety. Satire, on the other hand, does enjoy protec-
tion as it ‘‘is a form of artistic expression and social commentary and, by its inherent features of
exaggeration and distortion of reality, naturally aims to provoke and agitate’’.
4
Various attempts have been made to unpack the term ‘‘fake news’’ into its component parts.
Some are more convincing and more rigorous than others. The infographic, ‘Beyond ‘Fake News’ -
10 Types of Misleading News’, pr oduced by the European Association for Viewers Interes ts
(EAVI), has deservedly received wide attention and positive acclaim.
5
The infographic is detailed,
layered and thoughtful. First, it prises open the term by identifying ten categories of misleading
news. It then explores the (likely) motivation behind each category and their (likely) impact. The
ten types of misleading news are: propaganda, clickbait, sponsored content, satire and hoax, error,
partisan content, conspiracy theory, pseudoscience, misinformation and bogus content. The dif-
ferent types of motivation are listed as: money, politics/power, humour/fun, passion and [the aim
3. Garaudy v France App no 65831/01 ECHR 2003-IX (extracts).
4. Vereinigung Bildender Ku
¨nstler v Austria App no 68354/01 (ECHR, 25 January 2007) para 33.
5. Available at:
an international non-profit organisation.
204 Netherlands Quarterly of Human Rights 35(4)
to] (mis)inform. Impact is measured on a scale of neutral-low-medium-high. It is worth recalling
that the European Court of Human Rights typically includes these focuses – content, intent and
impact – in its contextual assessment of cases involving interferences with the right to freedom of
expression.
Historical evolution
For all the current hype around the term, ‘‘fake news’’ is by no means a new phenomenon. It is as
old as the hills. The press, particularly the partisan press, has always peddled biased opinions and
on occasion, stories that lack factual grounding. Whether and to what extent biased and fictitious
reporting should be regulated is a perennial question that concerns the public watchdog role of the
media in a democratic society. How much room should the watchdog be given to roam or how tight
should the leash be? It is a question that centrally involves both law and ethics and there are no
conclusive answers.
Spoofs and hoaxes can dupe the public, sometimes with dramatic results, as in the aforemen-
tioned ‘‘Pizzagate’’ example. Such hoaxes are devoid of redeeming value for public debate or
society. But hoaxes are not always (intended to be) detrimental to public debate. Misappropriation
or misinformation can also serve as strategies to stimulate public debate. The famous example of
‘‘Bye, Bye, Belgium’’ is arguably a case in point.
6
In December 2006, RTBF, the French-language
public service broadcaster in Belgium, interrupted regular television programming with a breaking
news report about the splitting-up of Belgium as a federal state. Some members of the public, as
well as some politicians and diplomats, were taken in by the report that Flanders had made a
declaration of independence. Described by the broadcaster as ‘‘docu-fiction’’, the report proved
very divisive. Its critics described it as an irresponsible action for a public service broadcaster. Its
defenders, on the other hand, contended that it triggered an important debate, not only about the
sensitive political question of Flemish independence, but also about journalistic ethics governing
news reporting. In 2010, a similar, high-profile hoax was broadcast in Georgia. The pro-
government Imedi TV station broadcast a fabricated report about a Russian invasion of Georgia.
Tensions between Russia and Georgia at the time rendered the story plausible in the eyes of many
viewers and considerable panic ensued.
7
Subsequent debate focused on whether the broadcast was
a public relations (or even propaganda) stunt or a controversial technique for triggering public
debate.
‘‘Fake news’’ has also been deployed by States as a weapon in information and ideological
warfare on the international plane, alongside the jamming of broadcast signals and, in recent years,
the blocking of websites. This became a major preoccupation for the United Nations (UN) in the
early days of the organisation with the onset of the Cold War. The problem was framed in terms of
the threat posed to friendly relations between peoples and States by the systematic diffusion of
deliberately false or distorted reports. This essentially boiled down to State-sponsored propaganda,
disseminated by States or (puppet) news agencies. At the time, one school of thought felt that it
6. For more information, see ‘Viewers Fooled by Belgium ‘Split’’ (BBC, 14 December 2006)
europe/6178671.stm>; A L and P Marlet, ‘Bye Bye Belgium: en 2006, le Docu-fiction de la RTBF Cre´ait un E
´lec-
trochoc’ (RTBF, 12 December 2016)
tion-de-la-rtbf-creait-un-electrochoc?id¼9479103> last accessed 23 September 2017.
7. For more information, see ‘Bogus TV Report of Russian Invasion Panics Georgia’ (BBC, 14 March 2010) (incl link to
video clip) .
McGonagle 205
would be legitimate to limit the right to freedom of expression in order to counter such false
reporting. Wording that provided for such a limitation on the right was included in the UN’s Draft
Convention on Freedom of Information (1948) and was proposed for inclusion in the International
Covenant on Civil and Political Rights (ICCPR). The 1948 Draft Convention was ultimately never
opened for signature or ratification and the proposed text for the ICCPR did not survive the drafting
process. The drafters of the European Convention on Human Rights also considered the UN’s
language, but they too opted not to incorporate it. Similar language did, however, make it into the
little-known UN Convention on the International Right of Correction, which remains in force
today, but it has enjoyed little take-up by States and is largely ineffectual.
8
The present surge of ‘‘fake news’’ must be considered in a different context, however. It
presents a number of features that distinguish it from its earlier incarnations. The context is an
utterly changed and still evolving media and news ecosystem, which has been driven by the advent
and rapid development of the Internet. Among the game-changing factors are: the sophistication
with which fake news is being produced; the scale on which it is being produced, and the speed and
effectiveness with which it is being disseminated. Technology has made it easy for a wide range of
actors to create content, including fake news, in a variety of formats – text, photos, videos,
infographs, memes, bots, gifs, etc. and to disseminate it swiftly and globally.
Internet intermediaries, such as search engines and social media network operators, perform key
gatekeeping functions in the media ecosystem.
9
They determine the availability, accessibility and
prominence of content and thus wield enormous power over the dissemination of fake news. This
explains why their role is coming under increased scrutiny and why they are being put under
increasing pressure to prevent and/or stop the flow of ‘‘fake news’’. It also explains why the
controversial German Act to Improve Enforcement of the Law in Social Networks
10
places so
much emphasis on social media platforms’ obligations to promptly deal with, and to report
complaints about, unlawful content (which could include particular types of ‘‘fake news’’, insofar
as they are covered by existing provisions in German criminal law).
11
The Act has been criticised
for its likely chilling effect on free speech.
12
Another upshot of developments in the media ecosystem is that it is now more difficult
than ever before to verify the accuracy of content, to ascertain the identity of the content-
producers and to figure out whether/which vested interests have shaped the production or
8. For further details and analysis, see Tarlach McGonagle, ‘The Development of Freedom of Expression and Information
within the UN: Leaps and Bounds or Fits and Starts?’ in T McGonagle and Y Donders (eds), The United Nations and
Freedom of Expression and Information: Critical Perspectives (Cambridge University Press 2015) 10-19.
9. See further: Patrick Leerssen, ‘Cut Out By The Middle Man: The Free Speech Implications Of Social Network
Blocking and Banning In The EU’ (2015) 6 JIPITEC.
10. Act to Improve Enforcement of the Law in Social Networks (Network Enforcement Act)/Gesetz zur Verbesserung der
Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz – NetzDG),1 September 2017, Bundes-
gesetzblatt, Jahrgang 2017, Teil I, Nr. 61, 7 September 2017 (entry into force: 1 October 2017). The author is grateful to
Jasmin Hohmann, research intern at IViR, for checking some technical and terminological details of the German-
language version of the Act.
11. See further: Staff and Agencies, ‘Germany approves plans to fine social media firms up to €50m’, The Guardian (30
June 2017), available at: < https://www.theguardian.com/media/2017/jun/30/germany-approves-plans-to-fine-social-
media-firms-up-to-50m> last accessed 2 October 2017.
12. See, for example, ‘Germany: The Act to Improve Enforcement of the Law in Social Networks’, Legal Analysis (Article
19, August 2017), available at:
German-NetzDG-Act.pdf> last accessed 2 October 2017.
206 Netherlands Quarterly of Human Rights 35(4)
dissemination of the content. The lack of transparency surrounding the algorithmic processes that
influence search results and (personalised) recommendations adds to these difficulties.
At first glance, these seem to be primarily problems for individuals trying to make sense of the
swirl of information and news on the internet. On more careful probing, it becomes clear that
States’ positive obligations to guarantee the right to freedom of expression are also implicated. The
European Court of Human Rights has affirmed that States have an obligation under the European
Convention on Human Rights (ECHR) ‘‘to create a favourable environment for participation in
public debate by everyone ...’’ .
13
This obligation requires States to guarantee pluralism in the
media ecosystem, including by supporting independent and investigative media and other media
actors such as fact-checking organisations; preventing excessive concentrations of media owner-
ship, and increasing transparency of media ownership and control. It arguably also requires States
to promote media, information and news literacy as life skills in order to enable their citizens to
analyse and critically evaluate the substance, provenance and relevance of media and news
content.
This approach, centring on the positive obligations of States Parties to the ECHR, also resonates
with the Joint Declaration on ‘‘Fake News’’, Disinformation and Propaganda that was adopted by
the International Specialised Mandates on Freedom of Expression and/or the Media in March
2017.
14
The Joint Declaration is part of annual series; each Joint Declaration examines different
topics relating to freedom of expression and/or the media. These Joint Declarations are not legally-
binding, but owing to their collective endorsement by the specialised mandates, they are regarded
as very persuasive interpretations of existing international human rights law on the topics they
address.
15
The 2017 Joint Declaration is the most explicit and detailed international text addressing
‘‘fake news’’ in recent years. It puts much store by the need for ‘‘fake news’’ to be dealt with in the
context of an enabling environment for free expression. It also includes pertinent focuses on the
roles and responsibilities of States, Internet intermediaries, journalists and media outlets and other
stakeholders in responding to ‘‘fake news’’. It is noteworthy that the specialised mandates use the
term within scare quotes, indicating a certain reluctance to embrace the term, perhaps, or at least to
underline its contested nature. It is also telling that the Joint Declaration does not address ‘‘fake
news’’exclusively: it positions the term on a continuum with other types of disinformation, thereby
contextualising it further.
13. Dink v Turkey App nos 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09 (ECHR, 14 September 2010) para 137. For
analysis, see Tarlach McGonagle, ‘Positive Obligations Concerning Freedom of Expression: Mere Potential or Real
Power?’ in Onur Andreotti (ed), Journalism at Risk: Threats, Challenges and Perspectives (Council of Europe Pub-
lishing 2015) 9-35.
14. The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security
and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States
(OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights
(ACHPR) Special Rapporteur on Freedom of Expression and Access to Information, ‘Joint Declaration on ‘‘Fake
News’’, Disinformation and Propaganda’ (3 March 2017).
15. For analysis, see Toby Mendel, ‘The UN Special Rapporteur on Freedom of Opinion and Expression: Progressive
Development of International Standards Relating to Freedom of Expression’ in T McGonagle and Y Donders (eds),
The United Nations and Freedom of Expression and Information: Critical Perspectives (Cambridge University Press
2015) 251-257.
McGonagle 207
Freedom of expression, ‘‘fake news’’ and the quest for truth
In his book, Areopagitica, published in 1644, John Milton posed his famous rhetorical question:
‘‘Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open
encounter?’’ The point is often made that history teems with examples in which Truth has been
trumped by Falsehood. But our focus should perhaps be less on the inherent resilience and fortitude
of Truth, and more on the conditions of a ‘‘free and open encounter’’. Rational appeal alone is not
enough to win the battle for hearts and minds. There has to be equality of arms in public debate if
truth is to have a fair chance to prevail.
One of the most enduring rationales for freedom of expression is the argument from truth. This
argument is all about the value – for individuals and society alike – of the search for truth. It is all
about the development and contestation of ideas in order to reach a higher level of knowledge and
understanding and to make fewer errors. Even if truth itself proves elusive, the process that leads
towards it is a goal in itself and it must be safeguarded.
The European Court of Human Rights stresses in its case-law that while everyone – including
bloggers, whistle-blowers, academics, members of civil society organisations, etc. - should be able
to participate in public debate, it is particularly important for journalists and the media to be able to
do so because of their ability to spread information and ideas widely, and thereby contribute to
public opinion-making. They have the task of imparting information and ideas on matters of public
interest, which the public has a right to receive. Journalists, the media and a growing range of other
actors can also act as public watchdogs, by bringing information to light and by exposing wrong-
doing and corruption by those in power.
The protection afforded by Article 10 ECHR is not limited to truthful information. Nor is it
limited to factual information. It also covers opinions. Facts and opinions or value judgments are
not the same: the existence of facts can be demonstrated, but it is not possible to prove the truth of
opinions or value judgments. A requirement to prove the truth of a value judgment infringes the
right to freedom of opinion. A value judgment should, however, have adequate factual basis, as
even a value judgment without any factual basis to support it may be excessive.
In any case, everyone who exercises the right to freedom of expression has certain duties and
responsibilities, the scope of which varies in different contexts. Journalists and the media must not
cross certain lines, in particular in respect of the reputation and rights of others. In principle, they
are expected to act in good faith in order to provide accurate and reliable information to the public
in accordance with the ethics of journalism. This is not the same as having an obligation to tell the
truth. Erroneous or untrue reporting can occur even when journalists act in good faith. For instance,
sometimes reporting is based on incomplete or inaccurate information, despite the best efforts of
the journalist to be thorough and precise. As Carl Bernstein – whose reporting with Bob Woodward
for The Washington Post broke the Watergate scandal – has put it, the primary task of the journalist
is to seek out ‘‘the best obtainable version of the truth’’.
16
Concluding cautionary notes
Fake, false, fraudulent, dishonest, bogus, scam, hoax, phoney, phoney-baloney ...there is no
shortage of emotively-charged terms to disparage, question and refute the truthfulness of content
or content-producers. These terms can be uttered in an instant, but their sting can be long-lasting,
16. Carl Bernstein, ‘The Idiot Culture: Reflections of Post-Watergate Journalism’ The New Republic (8 June 1992) 22, 24.
208 Netherlands Quarterly of Human Rights 35(4)
particularly when they target journalists and the media, for whom honesty and accuracy are the
tools of their trade.
This point calls for attention for something sinister and cynical about the current surge in usage
of the term ‘‘fake news’’ in public discourse by public figures and in particular by those who hold
positions of authority. Politicians, government ministers – and even prime ministers and presidents
– sometimes use the term to undermine the reputation and credibility of individual journalists,
individual media organisations and the media generally. Donald Trump’s ongoing vilification of
the ‘‘fake news media’’ – a net which he has cast very widely to include reputable media organisa-
tions – is a case in point.
17
This is a witch-hunt – pointing fingers and crying ‘‘witch’’ in the
expectation that such incriminations will lead to public distrust and opprobrium. It also contributes
to a climate of hostility and aggression towards journalists and the media.
Such verbal violence against journalists and the media is a very dangerous development for any
democratic society. Recognising this, the Council of Europe’s Committee of Ministers has stated
forcefully that: ‘‘State officials and public figures should not undermine or attack the integrity of
journalists and other media actors, for example on the basis of their gender or ethnic identity, or by
accusing them of disseminating propaganda, and thereby jeopardise their safety’’.
18
In the same
vein, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has questioned
whether President Trump’s targeting of individual journalist s with accusations of propagating
‘‘fake news’’ ‘‘[is not] an incitement for others to attack journalists?’’ He has also described
President Trump’s ‘‘demonization of the press’’ (in the US) as ‘‘poisonous’’ because of the
consequences it has elsewhere.
19
In conclusion, it is tempting to dismiss ‘‘fake news’’ as a fake concept. The scope of the term is
unclear and there is little coherence among the different types of expression that it potentially
encompasses. This means that it is of very limited use as an umbrella term. But it would be prudent
not to dismiss the term outright, for it is not going to go away in a hurry. It is very much a live issue
on the agendas of the Council of Europe, the European Union and the OSCE. Moreover, accusa-
tions of peddling ‘‘fake news’’ can stigmatize and undermine critical media and erode public trust
and confidence in the Fourth Estate. These are very good reasons to avoid the term (or at least to
keep it within scare quotes) and ignore the false fears it evokes. Instead, the focus needs to be on
how to tackle the real concerns lurking behind the term.
Declaration of conflicting interests
The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or
publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
17. Joel Simon, ‘Trump is Damaging Press Freedom in the US and Abroad’ The New York Times (25 February 2017)
mcubz¼3> last accessed 23 September 2017.
18. Guidelines in Appendix to Recommendation CM/Rec(2016)4 of the Committee of Ministers to Member States on the
Protection of Journalism and Safety of Journalists and Other Media Actors (13 April 2016) para 15.
19. Statement of the UN High Commissioner for Human Rights (30 August 2017)
brary/asset/1958/1958570/> last accessed 23 September 2017.
McGonagle 209
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