Fake News and the Challenges of Criminal Law

Abstract

The spread of fake news online is a global and complex phenomenon. It can be considered a “virus” that must be actively fought at several levels (i.e., supranational level and domestic level) and by different actors (i.e., private and public). This phenomenon is challenging for both social media companies and states, and they are called on to work in a synergy to address it. Many mechanisms and legislative measures have been proposed and adopted in order to counter the diffusion of fake news online. Some countries have also relied on criminal law. However, due to the complexity of the phenomenon, the specificity of each domestic legal order and the variety of fake news, it is not an easy task and it is difficult to adopt a unique solution that applies in all circumstances. The situation in Italy reflects such a difficulty. Therefore, particular attention will be paid to the different approaches proposed in Italy in order to address the spread of fake news online. Can we be sure that criminal law is the only (or the best) solution to deal with such a growing phenomenon? I conclude that criminal law may be invoked only in exceptional circumstances and when non-criminal measures prove inadequate to protect legal goods (Rechtsgüter) of paramount importance. Nevertheless, criminal law and the fight against the diffusion of fake news cannot be used - as has been done in certain countries - neither as an excuse nor as a tool to violate the right to freedom of expression, and to limit pluralism and participatory democracy.