Our lovely fakes

Italian lawmakers have reacted to the spread of fake news and misinformation with an authoritarian law. Far from solving the problem, though, it in fact creates even more.

A new strain of meningitis brought in by African immigrants ravages the country. Members of parliament pass a law setting up a “crisis fund” for their survival if they can’t find a job after completing their mandate. The icing on the cake: the Prime Minister urges Italians to “stop whining and start making sacrifices.”

This is a bunch of “news” which went viral online in Italy last year, even after the stories were repeatedly debunked as “bufale” (Italian for “hoaxes”).

The growth of fake news online aimed at stirring the pot and causing a howl of protest has not gone down well with the Italian lawmakers who have now decided to take the matter into their own hands.

Last month, a bill was tabled before the Senate with provisions aimed at “preventing the manipulation of online information, guaranteeing transparency on the web and promoting media literacy”. The bill, authored by a senator of the Opposition, but co-sponsored by a bi-partisan coalition of senators, including government party members, has already sent shockwaves through the internet community and defenders of freedom of expression.

Fines and Prison

If approved by Parliament, the new norms would impose a fine of up to €5,000 to whoever publishes or disseminates to the public via online platforms “fake, exaggerated or tendentious news regarding data or facts that are manifestly false or unproven.” The fine can be increased, depending on the gravity and level of dissemination, in cases the news is also acknowledged as defamatory by the judges.

However, this provision only applies to those publications available online that are not registered as “online newspapers,” in accordance with the criteria established by existing legislation, namely the Press Law no 47/148 and the Law on Publishing no 62/2001. As a result, only “non-journalistic” websites, blogs and pages on social media would be punishable in case of publication of “fake news.”

The bill also punishes whoever fabricates and spreads online “rumours or fake, exaggerated or tendentious news that may provoke public alarm or acts in a such a way as to damage public interests or mislead the public opinion” with at least one year in jail and a fine up to €5,000. The jail term and the fine are doubled if the activity consists of “hate campaigns against individuals or aimed at undermining the democratic process, even for political motives.”

On top of that, anyone who wishes to open “an online platform aimed at publishing or disseminating information to the public” will have to notify the territorially competent tribunal via certified email, listing the name of the platform, the URL, the name and surname of the administrator and their tax number. The rationale of this norm is purportedly “to increase transparency and contrast anonymity” on the web. Furthermore, all the online platforms will have to publish, within 48 hours of receipt, the statements or rectifications sent by anyone who felt damaged by something published or who claims the information is false, as long as such statements are lawful. Failure to do so is punished with fines between €500 and €2,000. 

Last but not least, administrators of online platforms will have to consistently monitor their content to assess whether it is reliable or truthful, and in case they decide it is not, they will have to remove it or face sanctions ranging from fines to jail terms.

Tough, Yet Ineffective?

Far from offering effective solutions to the problem of growing disinformation or hate-stirring propaganda, the provisions that Italian lawmakers are envisaging are grossly incompatible with the international standards for restrictions on freedom of expression.

First of all, they discriminate between registered “professional” online newspapers and all the other information platforms available on the internet, ignoring that the function of “journalism” (intended as the right to seek, receive, impart and analyse information) can be exercised by a range of actors going from professional reporters to bloggers or even ordinary citizens with a webcam.

Secondly, restrictions on freedom of expression may definitely be imposed to prohibit advocacy of hatred or incitement to violence, discrimination or hostility, but must also be necessary and proportionate to achieve this legitimate interest. For this reason, a blanket criminalisation of any fake news (regardless of a specific criminal intent in disseminating them) is definitely disproportionate and unnecessary in a democratic society.

Finally, the obligation on private online platforms, under the threat of a criminal sanction, to monitor and promptly remove any controversial information posted by others is bound to have a chilling effect on what will be allowed to be posted or not. On which objective and unquestionable grounds, then, will the online content providers decide whether the information is “truthful” or “reliable”?

The bill, obviously, leaves this and other questions unanswered.

Photo: The Public Domain Review