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Fake news – legal tools to fight back

Fake news – legal tools to fight back

Dodano: 2022-03-25

The outbreak of the war in Ukraine and the related attempts to spread false information online by the Russian side and its supporters have determined the leaders of states and the internet community to fight more decisively against fake news.

As we have come to realize, modern wars are hybrid in nature. These are not only military actions, but also attacks on information systems, and finally – information warfare. Of course, sowing propaganda took place during previous wars, but in recent years it has moved almost entirely to the internet and has taken the form of fake news, i.e., information that is false and misleading. This is not a new phenomenon – it has intensified, especially during election campaigns. However, it was the outbreak of the war in Ukraine that gave politicians and internet users a new impulse.

Unfortunately, the current regulations in Poland do not allow for an adequate response, hence the urgent need to create new regulations in this area. The blocking of certain content to internet platforms is allowed by Article 14.1 of the Act on Provision of Electronic Services, according to which:

”a person who, providing access to the resources of an ICT system for the purpose of storing data by the recipient of the service, does not know about the unlawful nature of the data or related activities is not liable for the stored data, and in the case of receiving official notification or obtaining reliable information about the unlawful nature of the data or related activities will immediately prevent access to the data.”

As we can see, the prerequisites for blocking a page or deleting a post are, first, notification from the relevant authority or network user, and second, illegality. As for unlawfulness, in the case of fake news, especially in the context of the war in Ukraine, the following violations will come into play, among others:

Article 117 par. 3 of the Criminal Code – inciting or praising an aggressive war;

Article 256 par. 1 of the Criminal Code – public propagation of a totalitarian state system or incitement to hatred on the grounds of national, ethnic, racial, religious differences or irreligiousness.

Apart from that, one can also point to content that constitutes insult (art. 216 of the Criminal Code) and defamation (art. 212 of the Criminal Code), although these should rather be considered as grounds for blocking posts that constitute hate, i.e. another internet problem. Besides, due to the private prosecution nature of these offences (or completely civil protection of personal rights), it seems that a request from the insulted or defamed subject is needed here.

Thus, as we can see, the regulations provide very limited possibilities of combating fake news as such – i.e. false information. What is more, additional prerequisites must be met. Theoretically, nothing stands in the way of introducing appropriate basis for blocking content in regulations of digital giants, but of course there is always a big risk of abusing these premises and de facto censorship on the internet. This is probably why the regulations of the most popular websites do not currently provide grounds for blocking content just because it is misleading. However, politicians and internet users are increasingly reporting the need to introduce such regulations – so it remains to be seen whether the rules or laws will be changed.

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