Other legal sources
5. Impact of ‘fake news’ on freedom of expression
5.2. Regulation of fake news in Serbia
The social harmfulness of spreading false news in Serbia was recognized decades ago. Accordingly, the Criminal Code once contained a crime called spreading false news. This crime is committed by anyone who spreads fake news or rumors that they know to be false, with the aim of causing a serious violation of public order and peace. A person would be fined or imprisoned for up to one year for this crime, if the crime was committed through the press, radio, television, other similar media, or at a public gathering. Although the crime in this form has ceased to exist, that does not mean that spreading false news is now permissible.
5.2.1. Criminal law concerns related to fake news
The criminal offense has changed and has existed in the changed form since 2006 in Article 343 of the Criminal Code. The crime is entitled causing panic and disorder. This criminal offense is committed by a person who, by presenting or spreading false news or allegations, causes panic or serious disturbance of public order or peace, or thwarts or significantly hinders the implementation of decisions and measures of state bodies or organizations exercising public authority.
67 Allcott and Gentzkow, 2017, p. 213. According to this author, fake news rules out several causes: 1) unintentional reporting mistakes, 2) rumors that do not originate from a particular news article, 3) conspiracy theories (these are, by definition, difficult to verify as true or false, and they are typical-ly originated by people who believe them to be true), 4) satire that is unliketypical-ly to be misconstrued as factual, 5) false statements by politicians, and 6) reports that are slanted or misleading but not outright false (p. 214).
68 Klein and Wueller, 2017, p. 6.
69 Colliander, 2019, p. 204.
This criminal offense is punishable by imprisonment from three months to three years and a fine, and if the criminal offense is committed through the media or similar media or at a public gathering, a prison sentence of six months to five years is threatened. As the consequence of presenting or spreading false news, the legislator, in addition to disturbing public order and peace, also foresaw the frustration or sig-nificant obstruction of the decisions and measures of state bodies or organizations exercising public authority, and the penalties have been increased.
This does not mean that a journalist, when publishing news, must establish the absolute truth. If there was an obligation to establish the absolute truth before news could be published, it would deter journalists from publishing texts for fear of pos-sible criminal prosecution if it happens that the news they published is not true.
Although it is not necessary to establish the absolute truth, it certainly does not release journalists from the duty to check the truthfulness of the information as required by the rules of the journalistic profession and the Code of Journalists of Serbia. This crime can be committed only with intent, which would mean that the journalist, at the time of publishing the news, has to have been aware that the infor-mation was false. If the journalist, before publishing, checks the truthfulness of the information in the manner prescribed by the Law on Public Information and Media and the Code of Journalists of Serbia, there is no awareness that the information being published is false, and therefore, this crime does not exist.
In order for this crime to exist, it is not enough that the information published is false; its publication must cause the consequences provided by the Criminal Code:
panic or serious disturbance of public order or peace, or significant hindrance of the implementation of state organs’ decisions and measures.
The Criminal Code stipulates that a person who transmits false news through the media or similar media or at a public gathering commits a more serious form of this crime because the false news will then be available to a larger number of people. Therefore, a more severe punishment is envisaged for the more serious form of this criminal offense. If a fake news item is published through a newspaper, radio, television, or other public medium, and the author of the fake news item is unknown or the fake news item is published without the author’s consent or there are legal obstacles to prosecuting the author, as a rule, the responsible person is the editor-in-chief of that medium. If these circumstances exist on the author’s part, and the false news is published in an occasional printed publication, its publisher will be respon-sible. Under the same conditions, the manufacturer will be responsible.
5.2.2. Civil law concerns related to fake news
In order to protect public interest through the general and special prevention of future violations, criminal law threatens severe punishment. However, absence of the crime does not mean that human rights are not being violated. Apart from the fact that crime protection does not exclude the measures other legal areas im-plement, civil law provides more claims than is the case with criminal provisions.
Based on Serbian case law, it seems that the most frequently invoked claim against fake news creators is for monetary damages. However, unlike the specific rules on damage compensation when a journalist publishes harmful content,70 when making the same request against the media due to damages caused by fake news, the general rules of the Law on Contracts and Torts are applied. The reason lies in the provisions of Art. 112 and Art. 113 of the Law of Public Information and Media, stipulating the journalist’s and editor-in-chief’s liability for damages.
Specifically, a person referred to in information that was prohibited to be pub-lished in accordance with this law and who suffers damages because of the publi-cation of the information is entitled to damages to cover material and nonmaterial damages pursuant to the general regulations and provisions of this law, disregarding other means of legal protection available to said person in accordance with the pro-visions hereof. The right to compensatory damages also pertains to a person whose replay, correction, or other information was not published, although its publication was ordered by the competent court when that person suffered damages. Fake news is not forbidden. Hence, this specific law’s liability rules do not apply.
Therefore, according to the relevant provision of the Law on Contracts and Torts, a person who causes damage to another is obliged to compensate for it, unless they prove that the damage was not caused through their own fault.71 In this respect, the Law of Public Information and Media provides an obligation of journalistic due diligence. This obligation requires that prior to publishing information about an oc-currence, event, or person, both the editor and the journalist shall check its origin, authenticity, and completeness with due diligence appropriate for the circumstances.
Furthermore, both the editor and the journalist shall convey the accepted infor-mation, ideas, and opinions authentically and fully, and if the information is taken from another medium, they shall credit that medium.72 In the context of fault for damage, it is hard to imagine circumstances under which the journalist could be excluded from liability.
The basis of liability is therefore the presumed fault of the person whose action caused the damage. Hence, a person who has undertaken an injurious action against someone’s concrete human rights (dignity, honor, reputation) is obliged to com-pensate for the damage caused by their wrongdoing. However, this general rule faces enforcement obstacles with regard to fake news damages.
Primarily, there are difficulties when it comes to spreading fake news via the Internet. From the aspect of general rules, in order to succeed with a request for com-pensation, the damaged right holder must prove that there is a causal link between
70 Art. 112-118 of the Law on Public Information and Media.
71 Art. 154(1) Law on Contracts and Torts.
72 Art. 9. In case law: Judgement of the Higher Court of Pančevo, P.br. 7/10 as of 3a February 2010, Judgement of the Higher Court of Belgrade, P3 244/14, as of 14 March 2016, Judgement of the Su-preme Court of Serbia, Rev. 1477/05, as of 27 December 2005, Judgement of the Court of Appeal in Belgrade, Gž 308/2016, as of 3 February 2017, Judgement of the Higher Court in Valjevo, Gž 507/19, as of 14 May 2020, Judgement of the Court of Appeal in Novi Sad, Gž. 83/11, as of 18 January 2011.
the false information and the damage itself. It is obvious that their position in the Internet environment where the injury occurred is far from simple. This is particu-larly the case when it comes to determining the origin of the misinformation. Apart from that, it is not necessary for the original source of information to be correlated with the damage caused. This could be the case when fake news is artistic, satirical, parody, or some other kind of allowed expression that is posted on a social network platform and reposted on media websites. Finally, regarding monetary compen-sation for non-pecuniary damages, the success of the demand, such as with respect to amount, depends on the intensity and duration of the suffering.
5.2.3. Concluding remarks
The above observation considered Serbian laws that could be applicable in cases involving fake news that causes legally relevant consequences. The complexity of the fake news phenomenon makes it challenging for legislatures to deal with in terms of exercising control.73 Fake news is the product of human beings, and society should deal with it through various fields of action.
In this respect, civil action can be of as much importance as authorities’ actions.
A major part of this is undertaken by different communities and associations that are devoted to identifying fake news, tracing its origin, and investigating liability.74 Fake news could also be suppressed through increased efforts to educate journalists, as well as through the conscience of the society itself.
From the legal point of view, it would be very problematic to define who should be the arbiter of truth.
73 During the novel coronavirus pandemic crisis in 2020, the government adopted the Conclusion on informing the population about the condition and consequences of the infectious disease COVID-19 caused by the SARS-CoV-2 virus (Official Gazette of the Republic of Serbia, No. 48/2020). The Conclusion was considered an attempt to restrict freedom of expression to the extent that it is dis-proportionate to the officially proclaimed goal. Thanks to the reaction of the journalistic and media community in Serbia, the controversial conclusion ceased to be effective within a short period of time.
74 For example, in Serbia: https://fakenews.rs/, where everyone could ask for the verification of the information published by the media.
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https://doi.org/10.54237/profnet.2021.mwsm_5
Social Media, Freedom of Expression, and the Legal Regulation of Fake News
in Croatia
Davor Derenčinović
1. Introduction
According to some estimates, in 2019, slightly more than 50% of the world’s popu-lation had access to the Internet, while in 2009, this number was significantly lower (less than 5%).1 Just over a year later, that number was estimated at over five billion people, representing somewhere around 65% of the world’s population.2 In Croatia in 2019, 79% of citizens used the Internet. For comparison, in 2009, 51% used the Internet, and in 1999, only 4% did. This means that in just twenty years, there has been a 75% increase in the Croatian population with Internet access.3 Some other sources point to as many as 92% of Croatian citizens who are Internet users.4 When it comes to social media, according to some estimates, in 2017, there were about 2.86 billion users, 3.6 billion in 2020, and it is estimated that by 2025, about 4.41 billion people will have profiles on social networks.5 According to a marketing agency survey,
1 See: https://data.worldbank.org/indicator/IT.NET.USER.ZS?end=2017&start=1990.
2 Ibid.
3 Ibid.
4 See: https://www.internetworldstats.com/stats.htm.
5 Supra note 1.
Davor Derenčinović (2021) Social Media, Freedom of Expression, and the Legal Regulation of Fake News in Croatia. In: Marcin Wielec (ed.) The Impact of Digital Platforms and Social Media on the Freedom of Expression and Pluralism, pp. 141–174. Budapest–Miskolc, Ferenc Mádl Institute of Comparative Law–Central European Academic Publishing.
at the beginning of 2019, “There were 1,900,000 Croats on Facebook, while there were about 1,100,000 on Instagram.”6 This exponential growth of users has not been coupled with increased media literacy, knowledge about the risks of victimization on global networks, or public awareness about harmful content.7 Legal regulation of the Internet and social networks is a problem that has just recently come under attention and which raises many questions, including: What are the (potentially) harmful side effects of freedom of expression on the Internet? How can we protect those who are the most vulnerable from harmful content and abuse? Who stands behind the creation and dissemination of fake news—foreign governments, terrorist organizations, the private sector, or someone else? What is the purpose of generating fake news—creating panic and confusion, maximizing profit in the spirit of the new pattern of surveillance capi-talism, controlling certain target groups of users, or something else?
This paper is an attempt to address at least some of these issues from the Cro-atian perspective. For many reasons, this perspective is very peculiar. The rapid development of electronic communications over the years, underscored by the global crisis caused by the novel coronavirus (COVID-19) pandemic, has shifted citizens’
professional and private lives onto virtual platforms.8 These global trends have af-fected people in Croatia in a way that is not much different from other countries.
However, the Croatian perspective on these issues is somewhat specific due to reasons that trace back to recent history. First and foremost, the country’s transition period is ongoing. The country was born after the dissolution of former Yugoslavia, and it gained its de facto independence through years of bloodshed in the Homeland War in the 1990s. Human casualties, economic devastation, and direct and indirect damages to private and state property were some of the serious consequences of the armed conflict and aggression, which resulted in the cessation of one third of the ter-ritory. These regions were regained and returned to the control of the capital in 1995 and 1998 through military campaign and peace negotiation settlements. Parallel to the atrocities, 90s Croatian society underwent a shady privatization process that generated huge inequalities among citizens.9 This negative stratification resulted in a global sense of injustice and a low level of public trust in the judiciary.10
6 See: https://bit.ly/3tXS1XL.
7 Henson, Reyns, and Ficher, 2013, pp. 475–497.
8 Volosevici, 2020, pp. 109–116.
9 Getoš Kalac and Bezić, 2017, pp. 1091–1120.; Roksandić Vidlička, 2014, pp. 1091–1120.
10 According to the 2020 European Union (EU) Justice Scoreboard, about 60% of respondents expressed their distrust of court judges in Croatia. This is the highest percentage in the EU. https://ec.euro-pa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en; In the 2019 Global Competitiveness Report presented by the World Economic Forum (WEF), Croatia’s judicial independence was ranked 126th out of 141 countries, which is the worst rating in the EU, https://www.weforum.org/reports/global-competitiveness-report-2019; However, it is not only the justice system that is perceived as problematic in Croatia. For instance, in 2020 Croatia was ranked fourth (after the Russian Federation, Turkey, and Ukraine) for the total number of violations of Arti-cle 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (fair trial), The ECHR in Facts in Figures 2020, European Court of Human Rights, February 2021).
doubtedly, this social context confused and disoriented people, most of whom use the Internet and social networks, and made them more vulnerable to victimization, abuse, and manipulation, both physically and in cyberspace.
Section 2 deals with freedom of expression and the prohibition of censorship in Croatia in the context of Internet and social media use. Section 3 provides an overview of the criminal legislation restricting free speech for the protection of some other constitutional values. Section 4 addresses legislative and institutional frame-works for regulating electronic media. The new Draft Electronic Media Act (DEMA), which introduces the concept of electronic media’s responsibility for user-generated content, is analyzed in Section 5. The thematic focus of Sections 6 and 7 is on fake news in general and the legal regulation of this phenomenon in Croatia. Section 8 analyzes two issues relevant to this topic: What are the nature and scope of content provider responsibility for user-generated content? (Section 8.1.) Is there a need for lex specialis regulation of social networks? (Section 8.2.) Finally, Section 9 is a con-clusion containing an attempt to answer the question: Does it make sense to counter fake news in a world where the truth has (almost) disappeared?
In sum, the purpose of this paper is to scrutinize and analyze regulations and pro-cedures, identify their weak points, and offer proposals to improve dysfunctional leg-islation and the ineffective implementation of Internet and social network policies.