“The ideal subject for a totalitarian government is not the convinced Nazi or Communist, but the individual for whom the distinction between fact and fiction and between true and false has ceased to exist” (Hannah Arendt).
Disinformation is slowly corroding the foundations of democracy. This is a look at the norms that combat post-truth, a discussion of the need and desirability of expanding their scope, and a review of the non-legal means that can help tackle the problem.
Bill Clinton and Pope Francis call for “urgent depopulation” to save the planet’ (2023) – ‘Volodymyr Zelensky is a Nazi’ (2021) – ‘COVID 19 vaccines inoculate nanochips to control population’ (2020) – ‘Washington pizzeria hides child abuse and trafficking ring run by prominent Democratic politicians’ (2016)
The DRAE defines post-truth as “the deliberate distortion of reality that manipulates beliefs and emotions in order to influence public opinion and social attitudes“. In other words, through disinformation, hoaxes and fake news, materially objective facts are given less weight in the formation of private and public opinion than appeals to what one believes or feels. Truth is given a relative value, the importance of objective data is trivialised and priority is given to emotional discourse. And so we end up ignoring what the world is really like and listening only to those who tell us what we want to hear.
Here we will review what legal tools exist to combat post-truth, and see whether they are effective or whether they need to be increased in number or depth. We will also take a look at the non-legal remedies available, and try to determine their usefulness.
Post-truth relies on our cognitive biases and takes advantage of the fact that social networks feed us with opinions and news that fit with those we already had previously, which distances us from listening, thinking, arguing and debating. Thus, the networks operate as loudspeakers of post-truth, hijacking us and preventing us from seeing beyond them: the algorithm will confine us in a bubble in which there is only what coincides with what we prefer to perceive, and, little by little, this will affect our ability to understand and interpret reality, removing value or twisting or denying objective facts, and validating in exchange alternative facts created on invented or altered material. And, in this way, we end up having difficulty differentiating what is truthful from what is not. Let us not forget that disinformation was born more than a century ago in the field of counter-espionage, until it overflowed a few years ago on the back of the networks.
And what is it that allows this to happen? There are many causes, but, simplistically, it is that truth is often not very seductive and post-truth is almost always more eye-catching and entertaining. An MIT study in 2018 found that fake news was spread 70% more often than real news, probably because it is not believed that it can cause harm, or because it is not seen what purpose it serves – when it always serves some interest – or because it is believed that by sharing news one is being useful to one’s environment or ingratiating oneself with it.
We will focus on post-truth in a political context. In reality, all varieties of disinformation (on health, climate, history, vulnerable groups, etc.) have a political intentionality: disinformation undermines the stability of states and their institutions by affecting the basis of democracy, which is built on a triple presumption: citizens are well informed through unmanipulated public opinion, they are aware of what is happening when they go to vote, and they can do so free from interference.
Some philosophers (Byung-Chul Han, for example) have theorised about this transformation of the public space caused by the misuse of the digital world, which impacts on political exercise, eliminating deliberation and debate and reducing the number of citizens who can and want to disagree, listen and argue, resulting in what he calls “infocracy“. According to Han, “democracy […] presupposes a discourse of truth. However, infocracy can do without truth”.
The case of Arron Banks (the biggest donor to the Leave campaign) is paradigmatic: he himself pointed out that the success of the Leave campaign over the Remain campaign was due to the fact that Remain supporters concentrated only on presenting one objective fact after another in favour of remaining, when the thing to do – and the Leave campaign did – was to “connect with people in an emotional way”. Many lies from that campaign are documented. Even Nigel Farage admitted – just an hour after the referendum results were known – that the figures for post-Brexit savings in British public health care that he had used in the campaign were fabricated.
Is ‘post-truth’ a new or softer way of calling lies? It is not the same thing: the idea of a lie has a negative implication that makes it unacceptable. Post-truth is something more subtle and elaborate (and therefore more harmful): it invites one to believe that in the political public domain, truth need not play a role, since there are as many descriptions of the world as one wishes. A simple example: media associated with the US Republican Party (GOP) claimed, without evidence, that Barack Obama was not born in the US, which would make him ineligible to run for President. Obama released his birth certificate and the Hawaii authorities confirmed its veracity. After this documentary confirmation, 41% of Americans said they still had doubts about Obama’s birthplace: that is, 41% of people in the United States believed that one can choose the reality that best fits one’s political location. Thus, truth would be a matter of political preference, and, given that, any description of reality one wanted to make would be legitimate.
We all have our particular biases, but in many cases they are born or amplified by social media being the only source of information used. And so many – but especially children and adolescents – can begin to find the distinction between the real and the fake irrelevant, which can translate into a complete distrust of the institutional system. This is why populists triumph: the simple is much easier to take on board than the complex, and also does not require arguing with oneself or looking beyond disagreement. In the networks, minutes of small entertainments or individual satisfactions are obtained and in exchange a collective danger -such as, for example, the attack on democratic stability- is inadvertently fed. If only this were just an exaggeration: the ‘Annual National Security Report 2022’ (Department of Homeland Security, Spain) states that disinformation is one of the main threats “to constitutional values, democratic processes, democratically constituted institutions and, therefore, to National Security”. And this in a context in which the number of democracies in the world is dwindling: according to The Economist’s ‘Democracy Index 2021’, there are only 21 countries in the world that can be considered a full democracy, and there are another 53 countries considered deficient democracies: in total, 74 countries out of a total of 195 recognised by the UN, which is 37% of countries, but only 19% of the world’s population. This is not the scenario that, a quarter of a century into the 21st century, we should want to have, and it is in danger of shrinking.
Let us see what legal means of defence against post-truth we have in Spain. Let’s start where we should: with the Constitution (EC). The title dedicated to fundamental rights and duties opens with the recognition of two basic rights: the right to freely express and disseminate thoughts, ideas and opinions (freedom of expression) and the right to freely communicate or receive truthful information (freedom of information).
The EC states that these two rights cannot be restricted by any kind of prior censorship and that both have their limit in the other fundamental rights (for these purposes, in the right to honour, privacy and self-image).
This crossover of rights is interesting: let us imagine a news item broadcast on a television channel stating that Begoña Gómez, spouse of the seventh president of the Spanish government in democracy, and publicly known to all as a woman, was born a man and is in fact a transsexual. Whoever hears the news can choose to believe it or not: that is where biases and one’s concept of what is plausible or reasonable will operate. Leaving aside for a moment the potential criminal consequences of such a news item, this example serves to explain that, at the crossroads between freedom of expression and information and the right to honour, the Constitutional Court (TC) has made freedom of expression prevail, on condition that the news item given is truthful. For these purposes, ‘truthful’ is not the same as ‘true’: ‘truthful’ is considered to be that news item whose issuer has complied with the “duty of diligence of the informant, who can and must be required to ensure that what he transmits as facts has been subject to prior comparison with objective data”. Thus, in our example, an attempt should have been made to contrast the news with registry entries, personal testimonies or even medical data. In our example, the reporter did not do so, and Begoña Gómez filed a complaint in November 2022 for libel and slander in which, when it is resolved, the protection of her honour will probably prevail over the freedom of expression of the media, which has not made that effort in pursuit of truthfulness. But the likely criminal conviction for libel will no longer prevent the fake news from having already done its work on those who chose to believe it.
This example brings us closer to post-truth and how it taints everything: the freedom of expression that covers post-truth can be fought with the tools of the protection of honour, yes, but this only covers individual cases that affect natural or legal persons and does not serve to limit the effects that some news stories can have on society or on the democratic system itself. Think of the frequent hoaxes that warn of alleged massive electoral frauds in which no one in particular is singled out (‘postal votes are not counted’, ‘people vote in the name of the dead’, ‘candidate X has been eliminated from the ballot papers of that province’…). What would be the protected good that would push the Public Prosecutor’s Office to act? Disinformation does not currently fit into the list of electoral offences in the Organic Law on the General Electoral System, and, apart from that, the Public Prosecutor’s Office has limited legitimacy to act, as we will see later. Would you, a citizen, dedicate your time and money – and expose your identity – to try to clean the networks of disinformation by means of a lawsuit? Moreover, your legitimacy to act would be doubtful most of the time. This is what post-truth is all about: it does no concrete harm to any of us individually, and so none of us act, and the harm spreads.
In a first, rather visceral reaction, it is often thought that disinformation must be combated through some kind of prior censorship or regulation. But we have already seen that the EC itself states that neither freedom of expression nor freedom of information can be restricted by prior censorship – if it were possible, this would have the same consequences for the value of our democracy as post-truth. Moreover, there are ethical reasons why censorship should not be allowed, because not allowing others to express themselves is tantamount to forcing them to give up defending their positions, even if these may be based on factual errors, whether self-interested or disinterested. Noam Chomsky said it very clearly: “If we don’t believe in freedom of speech for people we despise, we don’t believe in freedom of speech“.
But then, is – paradoxically – the broad constitutional protection of freedom of expression the best cover for post-truth? I think the answer should be no: truth is the correct description of what something is like, and that something should not depend on political preferences, but only on the elements that can be obtained in empirical research. Thus, the truth of facts should be a precondition for political pluralism and ideology. In other words: facts could not be something that could be questioned using the excuse of pluralism, because facts are a prerequisite for freedom of expression. To put it even more bluntly, to use Daniel P. Moynihan’s words: “you have all the right in the world to your own opinions, but not to your own facts”. If we want to protect political pluralism, we must first protect the prerequisite of facts. This is what Hannah Arendt was talking about in the quote that opens these notes (“the ideal subject for a totalitarian government is not the convinced Nazi or Communist, but the individual for whom the distinction between fact and fiction and between true and false has ceased to exist”).
The greater the dissemination of this disinformation, the smaller the possibility of the prerequisite for pluralism, which is that there be a framework of accepted facts. And weakening the value of facts produces polarisation, which invites populism and normalises it.
But we have a (small) problem: protecting the fact, which is all very well on a theoretical-legal and ethical-philosophical level, is somewhat impractical: the facts underlying all the claims that are disseminated cannot be checked. Institutions do not have the resources for that, and individuals do not have the time or the vocation. Perhaps artificial intelligence (AI) could help, but we will talk about that later. And, above all, to properly implement such care and illumination of the fact would be delicate, because it would border on (or be outright) censorship. Moreover, a censorial or prohibitive regulation could eliminate humour, satire and literary fiction, which often operate as magnifying glasses that help us to see and think in a different way.
Let’s move on: we have already seen what the constitutional limits to freedom of expression are. Let us now look at the three main limits set out in the Penal Code (PC). We have slander, which is the imputation of a crime made “with knowledge of its falsity or reckless disregard for the truth” (art. 205). It is accompanied by slander (art. 206), which is the “action or expression that injures the dignity of another person, undermining their reputation or damaging their self-esteem”, although “only slander that […] has been carried out with knowledge of its falsity or reckless disregard for the truth will constitute an offence”.
Several points to underline here: there will be no crime if it can be proved that what was said was true, and “reckless disregard for the truth” and prior “knowledge of its falsity” are complex realities to define and prove. Moreover, in this context, jurisprudence usually ends up prioritising freedom of expression and information if the offended person has a public projection or is a legal person or if there is a context of social alarm.
It is important to note that the PC prevents the Public Prosecutor’s Office from acting ex officio (unless the offence is directed against a public servant on facts related to his or her position), which means that complaints for disinformation that affect intangible collective goods such as democracy or truth will depend on whether a citizen or entity wants to take them on and whether their legitimisation is accepted. Furthermore, the Public Prosecutor’s Office does not have the means to act, and its actions would be a source of controversy (and perhaps more disinformation) as they could be understood to be dictated by the interests of the government of the day.
Finally, we have the so-called hate crimes (art. 510), dedicated to prosecute those who “publicly encourage, promote or incite directly or indirectly to hatred, hostility, discrimination or violence…” and for those who “produce, elaborate […] distribute, disseminate or sell writings or any other kind of material or media which by their content are suitable to encourage, promote, or incite directly or indirectly to hatred, hostility, discrimination or violence…”.
The consequences of these offences are prison sentences (although in practice this is rarely seen) and, in this context of social networks, also the removal of the content and the blocking of the medium or its closure.
In addition to criminal regulation, the protection of the right to honour can be sought through other legal routes: the civil route regulated in Organic Law 1/1982, on the protection of honour; the route of the procedure of Article 53.2 of the EC and the appeal for protection before the Constitutional Court and the route of the right to rectification of Organic Law LO 2/1984, regulating the right to rectification (for information published in the media).
As can be seen, the criminal catalogue is broad, but it does not cover post-truth well. Are new types needed? A “crime against truth” or post-truth? And who would fix that truth? A Ministry of Truth (which in George Orwell’s fiction was actually the Ministry of Lies)? A Reality Certification Agency? All this sounds like another potential threat to democracy, even if it was done under the pretence of defending it.
Defining truth is an additional complication for jurists. Let me explain: we know that when speaking of truth, a distinction is usually made between perceived truth – what we know and believe – and material truth – what actually is. But for jurists, truth is actually a third thing: truth is judicial truth, which is the truth that is established in a judgement: the possible discrepancy between what happened and what can be proved in the process is resolved in the judgement. Thus, the proven facts declared in the judgement constitute an objective truth – that material truth – even if one or more of the judges in the court itself have indicated via a dissenting opinion that they do not agree that this is the truth. And despite this declared doubt, the judgement will establish a truth that will from then on be an objective truth (although it may not actually be the material truth), and which, once the available remedies have been exhausted, will be protected as absolute truth.
And it is also curious to realise that this judicial truth may have been based on some kind of post-truth, because in a lawsuit the lawyer often tries to touch the emotions or beliefs of the judge. This possibility of rummaging around, of influencing the judge, stimulates lawyers: it is the moment to look for arguments, to imagine, to sow doubts about testimonies and evidence, to skirt the truth or simply to lie. This is both the great and the miserable thing about this profession, and it is also what gives fuel to the reputation that we are sometimes given and sometimes seek.
Before getting sidetracked by lawyer stuff, we talked about a possible new criminal offence. Constructing it would be difficult, and probably also useless: difficult because of its connection with the preferential constitutional protection of freedom of expression; difficult because of the complexity of some evidence (proving a deep fake is increasingly complicated, and doing so can cost a lot of time and money). Useless because of the complexity of attributing authorship in a medium such as the internet and because of the difficulty of prosecuting crimes committed in other jurisdictions, given the peculiarities of each one and the complexity of some extradition processes.
Having established the constitutional and penal framework, and having seen its relative scope, let’s see what else is in the legal toolbox to combat post-truth. The arsenal is wide, varied and (I fear) insufficient:
- In public international law there is a principle of non-interference in the affairs of other states, which is what the EU relied on when it restricted Russia Today’s radio activities in the EU at the beginning of the war in Ukraine.
- We also have the whole set of data protection policies and rules, built around consent, although they do not seem to have solved the problems of data mining and handling that are behind the amplification of misinformation.
- AI is another area of work and possible limits. AI itself has two sides, because it is both useful for spreading hoaxes and useful for combating them (it can be used to detect fake news and eliminate them or reduce their reach, or at least to mark them as such). It has a third, somewhat dystopian but not impossible, side, which is that generative AI could adopt these manipulation techniques and influence voter opinion with individualised messages, and thus influence the course of society. All this is a cause for concern, which is why there is work being done to regulate the ethics that should be applied to algorithms and AI: in the framework of the European Union (“Framework for the ethical aspects of AI”, currently before Parliament), Unesco (the “Ethics of AI” reflection) and in Spain (National AI Strategy).
- The EU also has an ‘Action Plan for a coordinated response to disinformation’ (2018). Its content highlights, due to its practical significance, the creation in March 2019 of a Rapid Alert System (RAS) with national contact points to alert on disinformation campaigns and to exchange information between states. Spain has adopted this plan by means of an Order (PCM/1030/2020) containing the procedure for action against disinformation approved by the National Security Council (including the creation of a Permanent Commission against disinformation that operates as an inter-ministerial coordination body and facilitates the exchange of information with the RAS).
- On a similar note, the US, spurred by Russian interference in the 2016 election and the assault on Capitol Hill in 2021, created the Disinformation Governance Board (DGB) in 2022, housed in the Department of Homeland Security. Tellingly, the first director of the DGB was harassed by pro-Trump media and resigned, and the JDG is more or less on hiatus. The director has a defamation lawsuit pending against Fox News, and in the meantime has suffered deepfake campaigns with montages of non-consensual pornography with her face.
- Germany and France have rules in place requiring digital platforms to remove disinformation content, although their application is limited to election periods.
- Now a year ago, the European Union published the Digital Services Regulation (a development of the Digital Services Act), which requires platforms with more than 45 million users within Europe to put in place measures to limit “negative effects [of disinformation] on civic discourse and electoral processes and public safety”. It doesn’t seem to be working: a few days ago, the EU reminded Elon Musk that X must follow the rules and remove disinformative content about Hamas attacks in Israel (manipulated clips from video games and films, images from other conflicts, AI-generated material). There is also a voluntary code to comply with this law, but X abandoned it (other non-European companies such as Meta or Google or TikTok have joined and follow it, although an EU report in September also identified them as non-compliant).
- There is also the European Digital Media Observatory (EDMO) of the European Union, under which national observatories are being set up: in Spain and Portugal, the IBERIFIER project (Iberian Digital Media Research and Fact-Checking Hub) is already operating to verify and disprove disinformation in the Iberian territory.
Does all this arsenal of rules, institutions and initiatives solve anything? Probably not, but we can say that their existence at least underlines the problem and shows that the answer cannot be only legal. Are there other fields of action? Of course there are: let’s look at at least two more: media self-regulation and verification bodies.
Let’s start with the media, taking the press as an example. A preliminary observation: what a reputable media outlet expresses works in the collective unconscious as an authoritative voice that tends to be accepted, but, at the same time, under the protection of this credibility achieved by a few media, the idea spreads that all media are reliable, and from there it goes on to give credibility to everything that arrives via social networks. And this is where the problems begin, because neither the origin nor the result is discriminated and what we could call pseudo-media emerges, which is actually the big problem: more or less structured and regular publications that take refuge in this presumption of credibility and contaminate the networks with eye-catching headlines that generate traffic – and income – and which are a breeding ground for false news for unscrupulous pundits and commentators, who make them their own and dump them on the networks.
But where is the threshold of reliability of a media outlet? What characteristics must it have in order to be considered reliable (above and beyond how its editorial line suits each of us)? How can we ensure that we are objectively well-informed? Nothing is guaranteed, but what is essential is that the medium complies with certain governance requirements: an ownership structure that does not succumb to immediate external pressures; an expert management body with a high degree of independence that can supervise editorial work; codes of conduct in the editorial offices that encourage the policy of verifying sources; rules for monitoring conflicts of interest; a Reader’s Ombudsman; transparency about the existence of all these rules, and so on.
Fulfilling these requirements sets in motion a virtuous circle: the credibility they generate makes the business grow, which serves as fuel to be able to continue to maintain that credibility. And it is this credibility itself that is changing the role of the media, which are going from being issuers of information to being in charge of fact-checking what others publish: their own prestige is turning them into decontaminators of what we have called pseudo-media. But the task is unmanageable.
Each with its own editorial line, there are prestigious newspapers that already meet all these requirements: The New York Times, The Washington Post, The Economist or The Wall Street Journal. Others are close, although they do not yet meet all of them: Le Monde, El País, La Reppublica, Il Corriere della Sera or The Guardian, among others. But little by little this self-regulation is spreading, and everything points to the fact that it will end up becoming standards. In fact, a year ago, the European Commission published a proposal for mandatory regulation of the media (‘European Media Freedom Act’) which, if successful, will serve to give legal status to many of these measures.
But how can these reliability requirements be imposed on social networks? They are not media, so media regulations cannot be applied to them, nor can they be asked to regulate themselves as if they were. Globally, the network giants will have to be pushed towards at least a minimum set of actions: for example, sifting out accounts or profiles that statistically disseminate mostly news that relies on unverified evidence, or limiting the activity of accounts that do not remove content when it is shown to be unsupported, and so on. The incentive to do so would be that the networks themselves would gain a credibility that they currently lack and which, as we have seen, could be a tool to grow their business.
The media’s task is not an easy one: for some years now, so-called gag lawsuits (or SLAPPs, for Strategic Lawsuits Against Public Participation) have been steadily increasing. These are lawsuits against journalists who have uncovered disinformation hoaxes, and the way to defend oneself against the liar is to sue the person who has exposed the liar: 800 lawsuits have already been documented in Europe alone (161 in 2022 alone). They are filed without the pretense of obtaining a favourable court ruling or compensation for damages, but simply to harass the media and drain its financial resources as punishment for having brought such cases to light. The plaintiff bears the legal costs, yes, but the effect has already been caused, as it is impossible for many media outlets to endure lengthy and expensive litigation – lawsuits are usually filed in London. In view of this, some media outlets are already refraining from exposing certain stories in advance, in a kind of preemptive self-censorship. As an example, there are many ongoing lawsuits brought by Russian oligarchs whose links to Vladimir Putin have been reported in the media. Arron Banks, who we were talking about earlier, has also filed a few. A proposal for a directive to limit SLAPPs has been in the EU’s pipeline since April 2022, but it is a legally unwieldy initiative.
We must dedicate at least a few lines to verification, which functions as a phosphorescent marker for disinformation. There are many initiatives underway, both private and public: the International Fact-checking Network (IFCN), the Spanish State Research Agency, and many other entities that have been gaining solvency and prestige. In Spain, for example, the IFCN’s independent, non-media, self-financed channels are those of the ‘Maldita’, ‘Newtral’ and ‘Verificat’ groups. These independent channels then cross paths with the media: for example, ‘Maldita Hemeroteca’ has its space on Onda Cero, serving as an external verifier outside the media itself.
However, the means of verification have two major problems: they are only approached by those who have doubts – and to have doubts you have to ask questions first – and the terrain is vast.
But if neither laws nor self-regulation nor verification are helpful in solving the problem, what will be?
Probably the most powerful weapon against misinformation is education. More and more of our lives happen in cyberspace, or through it, or because of it, or just in it, so we need to educate ourselves to use it well and to be able to separate emotions from realities. We all need education:
- education to understand the phenomenon and how the networks and media work, and to know where to check or verify news.
- education to understand the value of networks as a democratic tool: proper use would broaden public debate and allow more voices to participate, with a theoretical opportunity for a greater richness of ideas for all. Networks should be channels of communication and debate and not the one-way tool they are now.
- education to establish the idea that being informed through a single channel is dangerous.
- education to understand that we all feed this monster by re-disseminating untruthful material (often knowing it to be so), and to understand that we are disfiguring our identity as individuals by reducing and simplifying what we receive and what we broadcast.
Education on the correct use of social networks should be included in school curricula: democratic states have to establish effective public policies to ensure that their citizens have the necessary tools to live in this digital society. Something has been done, but I fear it is more for the headline than the effect: Royal Decree 217/2022, on the organisation and minimum teaching of ESO, states that curricula should include competences to promote media literacy and avoid the risks of manipulation and disinformation.
In addition to that, curricula should give a guiding value to science. And to philosophy, which shows us that under the appearance of progress and comfort and false wellbeing that the networks provide, there is a loss of freedom and the triumph of appearance and form over substance. And, although it may sound outdated, greater value should also be placed on moderation in the forms and tones of expression (what used to be called manners).
As in everything else, there is room for the self-taught here too: in the face of post-truth, certain routines of digital hygiene can be established:
- always ask yourself some questions (which in general are also useful for assessing almost any situation and which, as a summary, are in the guide that the Ministry of Health launched at the beginning of COVID): check the source of the content (where does this come from?); check its function (is it useful for the reader, why is this being disseminated, why is it being disseminated now?); check its relevance (is it important for this to circulate?), and think about whether it seems reliable.
- think about how many things we circulate knowing that they are not true (or not true at all), but we think they are funny, or we think they will help us fit in better with a person or group. And think about how many we could have avoided spreading.
- to seek out information on an issue for oneself and not just passively read what comes in. And, in particular, to go and look for it in a medium that a priori may be opposed to one’s own ideas, and to read it there not in order to be indignant about things that one does not share but to see how they are dealt with.
In short, to be educated in the knowledge that we should try to know rather than to believe and that we should try to reason rather than to feel. None of us likes to admit that we know that some of our convictions are not very rational and are based more on prejudice or bias than on objective facts, but we should not interpret the world according to our emotions and convictions, but according to those elements that we cannot doubt: we cannot give preference to what we believe if there is evidence to the contrary.
And then, with all that done, everyone can do what they want, but knowing what they are doing. And, of course, being free to make mistakes (but, preferably, being aware of the choice).
Truthful information should have a longer run than untruthful information, for the sake of all of us – at least for those of us who want to remain among the 19% of the world’s inhabitants who live in some kind of democracy, and also for those who want to see that percentage grow.