CHAPTER 4
Labelling Speech
František Kasl
4.1 Introduction
Chapter 7 of this edited volume offers insight into the current measures
taken by EU countries against disinformation and propaganda in the
online environment. A crucial aspect of these legislative or administrative
measures, which needs to be taken into consideration, is their conformity
with the broader European legal framework. Over its core components
loom the standards of European democratic societies jointly enshrined in
the European Convention on Human Rights (hereinafter referred to as
‘the Convention’; ECHR 2019a) and supported by the European Court
of Human Rights (ECHR) case law (ECHR 2019b). This chapter aims
to guide the reader through the current position of the ECHR on the
issue of permissible tools for combating disinformation and propaganda.
F. Kasl (B)
Institute of Law and Technology, Faculty of Law, Masaryk University,
Brno, Czech Republic
e-mail: frantisek.kasl@law.muni.cz
URL: https://www.muni.cz/en/people/462266-frantisekkasl
© The Author(s), under exclusive license to Springer Nature
Switzerland AG 2021
M. Gregor and P. Mlejnková (eds.), Challenging Online
Propaganda and Disinformation in the 21st Century,
Political Campaigning and Communication,
https://doi.org/10.1007/978-3-030-58624-9_4
105
106 F. KASL
4.2 Disinformation in the Context
of Freedom of Expression
The dissemination of propaganda and disinformation constitutes a challenging
legal environment, primarily from the perspective of labelling the
legal permissibility of the content as an exercise of freedom of expression.
When discussing disinformation in the context of freedom of expression,
two valuable perspectives on the disseminated information often
collide. Disinformation (see Chapter 1) is mostly defined based on its
deceptiveness, representing the deliberately fabricated nature of the information
without regard for the truth or available facts, as well as the
intention of the author to mislead the audience by promoting falsehood
or spreading doubt about verifiable facts (McGonagle 2017, 203). It
is therefore the lack of truthfulness and the insufficient sincerity of the
author’s intentions which allow for the identification of disinformation
among other content.
However, the category of disinformation, or fake news—a subcategory
with particular relevance in this context—encompasses a broad spectrum
of content, which covers topics ranging from harmless to widely impactful
(Katsirea 2018, 174). As for the classification of disinformation from the
freedom of expression perspective, it is the impact of the content which
is relevant in establishing infringement upon the fundamental rights and
freedoms of others. The ECHR has a time-proven doctrine regarding the
dissemination of defamatory information by traditional media. The main
distinction made here is between an untruthful allegation concerning
provable facts and subjective value judgements forming opinions, critique,
or speculations (Regules 2018, 15). Journalistic freedom of expression
receives broad recognition as a core component of a democratic society,
serving as a public watchdog.1 Nevertheless, there are boundaries recognised
through the traditionally developed ethical codes of journalism
(Katsirea 2018, 171). ECHR case law therefore operates with the expectation
of factual accuracy and adequate verification of sources by traditional
media.2 As such, provably false factual claims do not receive protection
under the Convention (Regules 2018, 16). Broadly instructive in this
1Sunday Times v. the United Kingdom, no. 6538/74, §41, ECHR 1979; Observer
and Guardian v United Kingdom, no 13585/88, §59, ECHR 1991.
2Tønsberg Blad AS and Marit Haukom v. Norway, no. 510/04, ECHR 2007; Bladet
Tromsø and Stensaas v Norway, no. 21980/93, ECHR 1999.
4 LABELLING SPEECH 107
regard is the opinion of the Venice Commission establishing a set of
requirements relevant in the case of an unproven defamatory allegation
of fact (Venice Commission 2004). Content falsifying history or denying
the Holocaust are therefore among classical examples of unprotected
untruthful expressions (Katsirea 2018, 177).
This is, however, not the usual issue of fake news or propaganda
content. Rather than spreading provably false factual disinformation, the
sources of such content provide a more or less sophisticated mix of
abridged factual descriptions, leading emotional expressions, speculative
fabulations, and other manipulative techniques introduced in detail in
earlier chapters. This presents the first challenge to the classification
of disinformation under the freedom of expression framework. Due to
often merely partial manipulation of provable facts and the otherwise
predominant role of content representing value judgements, there is
limited applicability of the available case law concerning defamatory media
coverage. Furthermore, given that, in general, most media news consists
more of socially agreed truths and reasoned subjective opinions rather
than proven absolute truths (Katsirea 2018, 176), the issue of truthfulness
in disinformation is a matter of scale rather than bipolar assessment. By
default, most disinformation must therefore be perceived as a protected
form of expression unless proven otherwise.
A further consideration of relevance regarding the category of
speech that the given disinformation represents: The ECHR developed
throughout its case law an implied hierarchy of protection rendered to
content depending on its purpose. There is a distinctly stronger tendency
towards awarding protection to expressions of political speech over purely
commercial content (Katsirea 2018, 173). This is reflected in particular
through the permitted margin of appreciation—that is, the freedom of
national authorities and courts to interpret and limit protection provided
under the Convention.3 It is, however, not at all clear, what level of
protection in this hierarchy a particular piece of disinformation should
receive given the broadness of possible form, content, and purpose constituting
these expressions. Even if it can be argued that a certain portion
of fake news is generated primarily with commercial, rather than political,
intentions (Katsirea 2018, 174), the profit-making objective does
3Markt Intern and Beermann v. Germany, no. 10572/83, ECHR 1990.
108 F. KASL
not exclude the given expression from legal protection by default.4 At
the same time, despite a large portion of the most controversial disinformation
being focused on political matters, deeper and more specific
examination of the particular content is required in order to determine
its nature as a valued form of democratic political expression or rather of
foreign propaganda constituting an abuse of the protective framework of
the Convention.5
Lastly, the intentions of the author come into play when assessing his
or her good faith in disseminating the given information. Intentions are of
an internal and subjective nature; there is therefore only indirect evidence
available to this effect. If one of the defining aspects of disinformation,
as compared to misinformation, is the intention to deceive on the part of
the author, there is inherent bad faith connected with spreading disinformation.
However, this does not mean that the assessment of good faith
can be done without, as suggested by Regules (2018, 16). The bad faith
must be established, along with the factual falsity, in order to consider
the given content unprotected disinformation. Nevertheless, proving bad
faith may not be as straightforward in the case of fake news, particularly
if the content is built on previous news or sources. If the intention of
the author can only be indirectly verified, it is a matter of evidence which
should, therefore, in a particular case exclude or permit a defence of good
faith. The reliability of information and sources is increasingly relativised
not just by fake news per se, but in general through the democratisation of
media and the online information environment. Taking into consideration
the effect of filter bubbles in online media (Flaxman et al. 2016), there is
sufficient room for argumentation for the good faith basis of some fake
news, reflecting the diversity of subjective perspectives and opinions freely
shared in a democratic society. This then poses an additional challenge to
restrictive measures against content labelled as disinformation.
To summarise this initial overview, disinformation encompasses a broad
category of content which may be permissible under the Convention to a
greatly varying degree. The versatility of this content upon closer inspection
prevents a systematic classification; however, it does provide for three
4Markt Intern and Beermann v. Germany, no. 10572/83, ECHR 1990.
5Kuhnen v. the Federal Republic of Germany (inadmissible), no. 12194/86, ECHR
1988.
4 LABELLING SPEECH 109
main aspects which indicate the position of specific content labelled as
disinformation within the freedom of expression framework:
• Provability: Disinformation is in general not provably untrue but
contains a mixture of misinterpreted factual claims and value judgements
which can be classified as manipulative techniques. The
assessment then depends on the provable presence of false factual
claims in the particular content.
• Purpose: The scope of protection pursuant to ECHR case law is
influenced by the purpose of the expression. Fake news has components
of political as well as commercial speech, whereas each stands
on the opposite spectrum of the hierarchy. Contextual interpretation
of the purpose of the content will therefore (co)determinate
the scope of protection.
• Intention of the author: The good faith of the author in the sources
and purpose of the content has relevance to its protection. Even
though disinformation is characterised by the bad faith of the author,
there is no possible direct evidence regarding the intent of the
author, and filter bubbles and other aspects of the online infosphere
may today constitute sufficient evidence for a good faith defence in
a particular case.
This introductory discussion provides an indication of the complexity of
viewing disinformation from the freedom of expression perspective. The
following sections shall provide more detailed insight into the relevant
aspects hinted upon or which follow from this discussion.
4.2.1 European Convention on Human Rights
As already noted, the Convention is a prominent beacon in the European
framework of fundamental rights and freedoms of an individual. Its
unifying and harmonising impact on the approach to protect these values
among the member states of the Council of Europe can hardly be overstated.
A great deal of the central position dedicated to this framework is
built on the basis of comprehensive ECHR case law, which throughout
the past 60 years (ECHR 2018) has provided a guiding interpretation
on the scope and application of the provisions under the Convention as
well as their gradual evolving adaptation to new technological, social, and
110 F. KASL
political contexts (Bychawska-Siniarska 2017, 9). The guiding role of the
ECHR case law in the context of permissible freedom of expression was
explicitly recognised even by the Court of Justice of the European Union
(CJEU).6 As such, the Convention and its values are an integral part of
all 47 legal systems of the Council of Europe member states (Equality and
Human Rights Commission 2017), which include all EU member states
as well as the additional states of wider Europe. It thereby establishes
the binding nature of this international treaty and its inescapable relevance
for the functioning of public authorities and the decision-making
of domestic courts throughout Europe (Bychawska-Siniarska 2017, 9).
For all these reasons, ECHR case law deserves particular attention when
considering permissible regulatory measures by European institutions
towards combatting disinformation and propaganda.
It must be further noted that, despite a prolonged complex legal relationship
between the application and enforcement of the Convention and
the framework of the European Union (Kuijer 2018), there is a close
overlap in the protection provided by these legal structures for freedom
of expression. The Convention stood at the basis of the values enshrined
in the Charter of Fundamental Rights of the European Union, which
sets them in close alignment (Lemmens 2001). Furthermore, recent
activity of the European Parliament indicates a continuing validity of
efforts towards closer interconnection of these supranational legal frameworks
through accession of the European Union to the Convention
(European Parliament 2019). Due to this close relation and the baseline
nature of the Convention, this chapter is, following other academics
(Sluijs 2012, 520), predominantly limited in focus on the Convention
and ECHR case law while recognising the increasing subsidiary relevance
of the Charter of Fundamental Rights of the European Union as well as
national constitutional or specific legislation. EU law is then taken into
more explicit consideration only in the final section when discussing the
existing framework for the (co)liability of hosting providers.
6Buivids, C-345/17, §66, CJEU 2019, ECLI:EU:C:2019:122.
4 LABELLING SPEECH 111
4.2.2 Freedom of Expression
Freedom of expression constitutes one of the core elements of the
Convention, enshrined in the provisions of Article 10 and stipulating
broad understanding of an individual fundamental right to free expression
as well as access to information. It is perceived as one of the cardinal European
values and reiterated in most international documents on human
rights (Flauss 2009, 813). The court described it as constituting ‘one of
the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s self-fulfilment’.7
It is crucial to highlight at this point that ECHR case law serves as
an intrinsic part of the normative structure of the Convention, forming
a set of binding precedents with the status of mandatory legal norms
shaping the meaning of the respective provisions as such. This allows the
Convention to be adequately responsive to the dynamic developments of
standards and values but lays upon the reader an additional requirement of
expertise while seeking interpretation of the provisions under the presentday
conditions (Bychawska-Siniarska 2017, 10).
4.2.3 Doctrine of Margin Appreciation
Part of the structural quality of the Convention is reflected in the established
doctrine of margin appreciation8 pursued by the ECHR, which
provides for a degree of discretion for national public authorities and
courts with regard to interpretation and application of the Convention
(Bychawska-Siniarska 2017, 10). As such, the margin differs depending
on the particularities, as it does in regard to the protection of freedom of
expression, whose margin is, under the current interpretation, in principle
comparatively low (Bychawska-Siniarska 2017, 10). Any state interference
with the freedom must be necessitated by the fulfilment of three
conditions: the action must be prescribed by law, it must be considered
necessary in a democratic society, and it must be proportionate in respect
to the aim pursued (Greer 2000, 10). These elements of the so-called
proportionality test shall be closely inspected in a later section of this
chapter.
7Lingens v. Austria, no. 9815/82, §41, ECHR 1986.
8Handyside v. the United Kingdom, no. 5493/72, §48, ECHR 1976.
112 F. KASL
4.2.4 Components of Freedom of Expression
The constituting element of the broader freedom of expression is the
often-referenced freedom of speech. It is built upon the principle of
protecting the freedom of any individual or community to voice opinions
and ideas without fear of retaliation, censorship, or legal sanction.
The possibility to voice one’s opinions freely is a necessary precondition
for the purposeful guarantee of freedom of conscience (Olteanu 2015,
261). The freedom of expression, as provided in the first paragraph of
Article 10 of the Convention, is composed of three constituting components:
the freedom to hold opinions (freedom of thought), the freedom
to impart information and ideas (freedom of speech), and the freedom to
receive information and ideas (freedom of access).
The freedom to hold opinions is a logical precondition to other aspects
of free expression. Its protection is general and nearly absolute, following
from the fact that it is seen from the perspective of the international
community as the foundation of a democratic society (UN Human Rights
Committee 2011).
In the context of disinformation, it presents the conceptual justification
for the existence of disinformation. The public sector in a democratic state
is not permitted to enforce one-sided information or an interpretation
of an event (Bychawska-Siniarska 2017, 13). Furthermore, the difference
between dissent, conspiratorial information, and disinformation is often
blurry and a matter of individual perspective. The natural lack of full information
and the right of each individual to a subjective perception and
interpretation of events or actions provide for a democratic divergence of
opinions, but they also serve as a protective shield for disseminators of
disinformation. As described in Chapter 1, there is a variety of manipulative
techniques to be employed and degrees of deceptiveness associated
with disinformation. From the legal perspective, this fine gradation may
spell the difference between the exercise of fundamental freedom and
abuse of its protective framework.
Nevertheless, the dissemination of disinformation and propaganda
goes by its nature beyond mere freedom of thought to its manifestation
as an information shared in communication. The basic dimensions of this
freedom relate to democratic governance and therefore concern primarily
4 LABELLING SPEECH 113
free political competition9 and criticism of government10 (BychawskaSiniarska
2017, 14). There are many shades of freedom of speech that
were considered by the ECHR in its case law, whether concerning political
opinions, information on economic matters,11 or manifestations of
artistic ideas.12 Disinformation may in essence touch upon any of these
categories given that their content is not restricted to a particular context.
The individual’s right to have access to information and ideas is to
be interpreted in a broad sense, giving a potential basis to the right to
have access to disinformation. Everyone’s opinions and ideas are formed
to a large degree based on external inputs. Therefore, our ability to cope
with contradictory information or complex concepts is a result of repeated
exposure and interaction with unstructured and conflicting pieces of
information, from which each individual forms his subjective worldview
and opinions on particular issues and topics. In this context, combatting
disinformation or propaganda includes measures towards education
and awareness (Barderi 2018, 7). If freedom of expression unlocks the
potential for individuality and diversity, the right to access information
is the basis for the individual development of critical thinking (McPeck
2016). Nevertheless, the scope of freedom of access is limited to the
lawful sources of information and ideas available.13 Due to the unestablished
nature of fake news as expressions, it cannot be seen as a basis for
their protection, but merely as a basis for the permissible dissemination
of diverse opinions and content.
9 Handyside v. the United Kingdom, no. 5493/72, §42 et seq., ECHR 1976.
10Lingens v. Austria, no. 9815/82, §34 et seq., ECHR 1986; ¸Sener v. Turkey, no.
26680/95, §25 et seq., ECHR 2000; Thoma v. Luxembourg, no. 38432/97, §32 et seq,
ECHR 2001; Maronek v. Slovakia, no. 32686/96, §46 et seq, ECHR 2001; Dichand
and Others v. Austria, no. 29271/95, §25 et seq., ECHR 2002.
11Krone Verlag GmbH & Co. KG v. Austria (No. 3), no. 39069/97, §21 et seq.,
ECHR 2003.
12Muller and Others v. Switzerland, no. 10737/84, §26 et seq., ECHR 1988.
13Osterreichische Vereinigung zur Erhaltung, Starkung und Schaffung v. Austria, no.
39534/07, §28 et seq., ECHR 2013; Autronic AG v. Switzerland, no. 12726/87, §47,
ECHR 1990.
114 F. KASL
4.2.5 Typology of Speech
The speech protected under the Convention is to be understood in a
broad sense, encompassing various forms of idea manifestation (including
e.g. pictures14 or actions15) as well as their formats of expression
(including e.g. radio broadcasts16 or printed documents17). Consequently,
various means of production, transmission, and distribution
of expression are covered by the freedom, following the development
of information and communication technologies (Bychawska-Siniarska
2017, 18). The internet age has not just brought new formats for
expression, but also new challenges in the form of globalised information
sharing platforms, which may restrict guaranteed freedoms through
commercially controlled, technological means (Oozeer 2014, 348). This
technological transformation can also be seen as a crucial enabler, leading
to the increasing urgency of the disinformation issue.
4.2.5.1 Hate Speech and Other Unprotected Forms of Speech
A particular category of speech which needs to be taken into consideration
while discussing disinformation consists of the established forms of
unprotected speech—that is, content aimed at incitement of violence,18
the expression of hate towards minorities,19 or Holocaust denial or its
abuse.20 Article 10 of the Convention may not contain the explicit exclusion
of these expressions; however, the Convention needs to be read as a
whole, which brings into play Articles 14 and 17. Article 14 prohibits
discrimination, whereas Article 17 prevents any interpretation of the
Convention that would imply the right of any party to the destruction
or limitation of any right or freedom under the Convention to a greater
extent than it provides. This, in effect, forms the basis for the aforementioned
categories of unprotected speech as established by ECHR
case law (Bleich 2014, 292). In fact, hate speech may take a multitude
14Muller and Others v. Switzerland, no. 10737/84, ECHR 1988.
15Steel and Others v. the United Kingdom, no. 24838/94, §88 et seq., ECHR 1998.
16Groppera Radio AG and Others v. Switzerland, no. 10890/84, ECHR 1990.
17Handyside v. the United Kingdom, no. 5493/72, ECHR 1976.
18Sürek v. Turkey (No. 3), no. 24735/94, §40, ECHR 1999.
19Vejdeland and Others v. Sweden, no. 1813/07, §8, ECHR 2012.
20PETA Deutschland v. Germany, no. 43481/09, §49, ECHR 2012.
4 LABELLING SPEECH 115
of forms beyond the originally adjudicated racial hate.21 These include
ethnic hate,22 incitement to violence and supporting a terrorist activity,23
negationism and revisionism,24 religious hate,25 or threats to the democratic
order26 (ECHR 2019c, 1–5). Such speech may contain a form of
disinformation in the sense that it is fabulised or intentionally biased,
but that is essentially a secondary attribute, in essence not related to
the basis for exclusion from the scope of protected speech, as established
above. The European approach to hate speech is, in effect, significantly
more complex than the parallel system developed in the United States
(Bleich 2014, 284); however, that also means that the category of hate
speech is less clear-cut, and assessment under the Convention requires
careful consideration of the specific circumstances of each case (Bleich
2014, 294). In consequence, hate speech can hardly be perceived as a
definitive category, similar to the above established challenging classification
of disinformation. Furthermore, these two categories may overlap,
but given that their indicative attributes differ, the overlap is merely
partial. Additionally, fake news containing expressions of hate, in particular
hate against a minority, is unlikely to constitute the so-called hard
cases (Dworkin 1975) in the sense of challenging the setting for guiding
judicial interpretation. However, as gradually established throughout this
chapter, a large portion of disinformation is likely to constitute such ‘hard
cases’ due to a lack of clear guidelines for their adjudication.
4.2.5.2 Conflict of Fundamental Rights or Freedoms
The provided cases establishing the exclusion of hate speech from protection
due to the excessive infringement on the expression of the rights and
freedoms of others can be viewed as one extreme of a spectrum. However,
most situations concerning hate speech as well as fake news do not qualify
for such extremity despite presenting an obvious conflict between equally
21Glimmerveen and Haqenbeek v. the Netherlands, no. 8348/78,8406/78, ECHR
1979.
22Pavel Ivanov v. Russia, no. 35222/04, ECHR 2007.
23Roj TV A/S v. Denmark, no. 24683/14, ECHR 2018.
24Garaudy v. France, no. 65831/01, ECHR 2003.
25Norwood v. the United Kingdom, no. 23131/03, ECHR 2004.
26B.H, M.W, H.P and G.K. v. Austria, no. 12774/87, decision of the Commission
1989.
116 F. KASL
valued fundamental rights and freedoms. This is in fact the basis for most
defamatory cases concerning freedom of expression in the media (ECHR
2019d). Such conflicts need to be resolved on the basis of a balancing
test. This results in the proportionate restriction of the concerned rights
and freedoms. This aspect shall be considered further throughout the text
of this chapter.
4.2.5.3 Restrictions Permitted Under the Convention
In consequence, most expressions constituting disinformation or propaganda
need to be perceived as falling under the protection of Article 10
of the Convention. This means that restriction of their dissemination by
state authorities is permissible under the margin of appreciation if the
conditions foreseen by the Convention are met.
4.3 Permissible Restrictions to Freedom
of Speech Through State Action
Restrictions to freedom of speech must be assessed in a particular context;
no general approach to the restriction of content is permissible under
Article 17 of the Convention. Additionally, equality of rights protected
under the Convention necessitates all restrictive authoritative actions be
subject to a balancing act of permissibility (Bychawska-Siniarska 2017,
32). Following from ECHR case law, the central role in balancing the
conflicting freedoms and interests falls to the three-part test for adjudicating
the necessity of interference with freedom in a democratic society.
Cumulative conditions for permissible interference with freedom of
speech by national authorities are threefold: (i) interference is prescribed
by law,27 (ii) it is aimed at the protection of one of the interests or values
enlisted in the second paragraph of Article 10,28 and (iii) it is a necessary
measure in a democratic society.29
The fulfilment of these conditions is to be interpreted in a strict
manner in order to protect broad freedom of speech. Under this premise,
27The Sunday Times v. the United Kingdom, no. 6538/74, §46 et seq., ECHR 1979.
28Handyside v. the United Kingdom, no. 5493/72, §43–50, ECHR 1976.
29The Sunday Times v. the United Kingdom, no. 6538/74, §58 et seq., ECHR 1979.
4 LABELLING SPEECH 117
a borderline case should in general be awarded in favour of the individual
and his freedom rather than a state’s claim to overriding interest
(Rzepli´nski 1997, 2–3).
The restrictive approach means that no additional interests or values
to those foreseen by the Convention should be used as a basis for the
interference, and the content of the aforementioned three criteria should
not be interpreted beyond their ordinary meaning (European Commission
of Human Rights 1977, 74). This position of the ECHR towards
measures limiting freedom of speech is of high relevance for possible
legislative measures aimed at the systematic combating of disinformation
or propaganda.
Nevertheless, apart from the criteria expressly stated in the aforementioned
paragraphs, the ECHR established through its more recent case
law that some regard should be given to the specific context of the expression
(Bychawska-Siniarska 2017, 12). This means that consideration may
be given to its particular purpose, for instance, political or commercial
(Katsirea 2018, 173); its form of dissemination, such as audiovisual media
or online access (Callamard 2017, 325–26); or its predominant target
audience, for example, the public without restriction, including children,
or just a particular interest group (Bychawska-Siniarska 2017, 12).
Furthermore, as presented early in this chapter, some of the core
aspects defining disinformation, such as a provable falsity and the intention
to deceive, may be considered relevant under contextual circumstances.
These were mostly inferred for cases of controversial and defamatory
journalistic expressions, which is close to the context of fake news.
The requirements for upholding the baseline of journalistic ethics by
traditional media were already mentioned; however, fake news is predominantly
shared by new media in the online environment. Therefore,
consideration must additionally be given to the plausibility of extending
the requirement of upholding certain journalistic standards to online
news dissemination as well. This issue is far from simple given that relevant
online media consists of a significantly broader spectrum of subjects
and structures than traditional media. There is likely little dispute over
the applicability of the requirements to online news platforms of traditional
media outlets. Similarly, online media with a traditional content
creation process (by employees or an otherwise limited and accountable
group) also likely conform with general parameters for applicability of
these requirements. However, a sizable portion of the considered fake
118 F. KASL
news does not originate from these structures but rather through usergenerated
content hosted on online platforms established for this purpose.
This modern approach to the democratisation of online content creation
challenges the traditional perception of journalism (Normahfuzah 2017)
and also alters the consideration of applicable requirements. The source
of the content is diluted among a multitude of authors who have no
permanent link to the hosting provider. The hosting provider often lacks
even general information about the identity of the content creators and
in many cases refrains from any moderating or editing role with regards
to the disseminated content.
The ECHR established in its case law that media needs to be perceived
in a broad sense, including also others who engage in a public debate
rather than just traditional media.30 Katsirea infers from this interpretation
that new online media should be treated similarly to traditional
journalists (Katsirea 2018, 173). However, this is by no means decidedly
inferable from the available case law. The position of a content
creator contributing to a platform for user-generated content can vary
greatly, from an occasional contributor of a comment or link to a regular
blogger on par with a journalist. In any case, the multitude of creators
contributing to the hosting platform fragments the roles. Therefore, the
predominantly loose relationships between content creators and hosting
providers cannot be compared to the structures present in traditional
media for content review and editing. In consequence, the room to
enforce liability for the content against the individual users is comparatively
diminished. This is the basis for considerations over the (co)liability
of hosting providers, which shall be discussed in the concluding section
of this chapter.
4.3.1 State Interference
State interference restricting the freedom of expression is to be understood
as any form of interference from any authority with public power
or in public service (Bychawska-Siniarska 2017, 34). Therefore, any action
of public bodies leading to the limitation of accessibility to content is to
be considered as such interference. In general, censorship may take place
either before or after the expression has been made available to the public.
30Steel and Morris v. the United Kingdom, no. 68416/01, ECHR 2005.
4 LABELLING SPEECH 119
Censorship prior to publishing is especially perceived by the ECHR as a
major intervention in the freedom of expression, which should therefore
be applied with particular caution (Bychawska-Siniarska 2017, 35). For
this reason, even though Article 10 of the Convention does not prohibit
such a measure per se, established interpretation pursuant to ECHR case
law sees only a narrow window for its permissibility.31 Another form of
interference which may come into consideration with regards to disinformation
is to order the author to reveal journalistic sources and documents
under sanction.32 The ECHR did not, to the knowledge of the author,
deal as of yet with a specific case concerning such measures against a disinformation
disseminator, in particular with regard to the assessment of the
intensity of measures taken against such expressions.
However, most suitable interference would likely constitute a postpublication
censorship action or a withdrawal of a published expression
from public accessibility. In such a case, the impact of the restriction
concerning the denial of access and deletion of content published online
seems less invasive than most interferences reproached by the ECHR in
the available case law. These also encompass, aside from the abovementioned
cases of prior censorship, criminal persecution for the expression
as such,33 confiscation of the means through which the information
was disseminated,34 or a prohibition of advertisement,35 political in
particular.36
Depending on the specific content of the disinformation or propaganda,
some of these more invasive interferences may be considered
relevant along with post-publication censorship, specifically criminal
persecution or an advertisement prohibition of extremist political ideas.
However, these would likely be extreme cases, solved under respective,
specific national laws.
31The Sunday Times v. the United Kingdom (No. 2), no. 13166/87, §51, ECHR
1991; Observer and Guardian v. the United Kingdom, no. 13585/88, §59, ECHR 1991.
32Goodwin v. the United Kingdom, no. 17488/90, §27, ECHR 1996.
33Castells v. Spain, no. 11798/85, ECHR 1992.
34Muller and Others v. Switzerland, no. 10737/84, §28, ECHR 1988.
35Casado Coca v. Spain, no. 15450/89, §49, ECHR 1994.
36TV Vest AS & Rogaland Pensjonistparti v. Norway, no. 21132/05, §63, ECHR
2008.
120 F. KASL
4.3.2 Prescribed by Law
The first condition concerning the permissibility of state interference
is its basis in national law. The measure should be enforced pursuant
to national legal provisions, or, depending on the legal system of the
state, in accordance with the common law, even though the parliamentary
legitimacy of the measure may play a role in the justification of
the restriction under the Convention (Bychawska-Siniarska 2017, 39).
Therefore, as such, even the unwritten components of the common law
system are perceived as a relevant basis for state interference (Ajevski
2014, 125). The court also maintains, among the relevant aspects of
the legal basis, its public accessibility and foreseeability.37 Following from
these requirements, measures based on unpublished internal regulations
or other sub-statutory provisions would in general not be a permissible
basis for the restriction of the freedom of expression (Bychawska-Siniarska
2017, 42). Through this prism, most current national laws contain a
general basis for measures against disinformation; however, most lack
sufficiently specific regulatory provisions.
4.3.3 Legitimate Aim
Even with the respective legal framework in place, its application needs
to be considered with regard to its aim. The ECHR ‘has a very relaxed
attitude towards the states’ claims of following a legitimate aim and for
not requiring a very strict connection between the state action and the
legitimate aim pursued’ (Ajevski 2014, 126). Aims pursued by legitimate
restrictions of freedom of speech are listed under paragraph 2 of Article
10 of the Convention.
Due to the broad spectrum of content presented under disinformation
or propaganda, a legitimate aim may be inferred from a multitude
of available bases. However, the mere deceptive nature of the content
is insufficient ground for restriction unless it can be further connected
to interference with one of the protected interests. These include (i)
national security, (ii) territorial integrity, (iii) public safety, (iv) prevention
of disorder or crime, (v) protection of health or morals, (vi) protection
of the reputation or rights of others, (vii) confidence of information, or
(viii) the authority and impartiality of the judiciary.
37Leander v. Sweden, no. 9248/81, §50, ECHR 1987.
4 LABELLING SPEECH 121
4.3.3.1 National Security
Restrictions in the interest of national security must respect the strict
limits set by ECHR case law.38 The court held that it is in general unnecessary
to prevent the disclosure of certain information if it had already
been made public.39 National security information cannot be regarded en
masse as confidential in order to apply restricted access to it.40 Disinformation
can certainly acquire a quality threatening the interests of national
security; however, the legitimacy of its restriction needs to also take into
consideration the nature of the dissemination media.41 In this sense, fake
news shared through ill-reputed portals broadly known for propaganda or
conspiratorial content are unlikely to pose a serious threat to the interests
of national security as such, and additional justification for the legitimacy
of this aim may be required.
4.3.3.2 Territorial Integrity
Similar considerations apply to the interest of territorial integrity, which
mostly concerns dissemination of separatist propaganda.42 The article
must be sufficiently capable of inciting violence or local dissent in order to
infringe upon this interest.43 Mere one-sidedness of political opinions or
interpretation of events formulating criticism of the government do not
in itself justify such interference with freedom of expression.44 The propagandistic
or deceptive nature of the expression must result in an abuse of
rights or convincing promotion of conduct contrary to the spirit of the
Convention so as to allow for restrictive action.45
38Observer and Guardian v. the United Kingdom, no. 13585/88, ECHR 1991.
39Weber v. Switzerland, no. 11034/84, §49, ECHR 1990.
40Vereniging Weekblad Bluf! v. the Netherlands, no. 16616/90, §38 et seq., ECHR
1995.
41Stoll v. Switzerland, no. 69698/01, §117 et seq., ECHR 2007.
42Sürek and Ozdemir v. Turkey, no. 26682/95, §49–50, ECHR 1999.
43Sürek v. Turkey (No. 3), no. 24735/94, §40–41, ECHR 1999.
44Sürek and Ozdemir v. Turkey, no. 23927/94,24277/94, §58 et seq., ECHR 1999.
45Kuhnen v. the Federal Republic of Germany (inadmissible), no. 12194/86, ECHR
1988.
122 F. KASL
4.3.3.3 Public Safety, Prevention of Disorder or Crime, Authority,
and Impartiality of the Judiciary
The public safety interest may be relevant to disinformation causing panic
or regarding functions and the availability of public services, such as
health services, public transport, or basic utilities. Another possible basis
is interference with the interest of disorder or crime prevention, previously
adjudicated expressions encouraging the disobedience of armed
forces,46 or public support of violent criminal behaviour. Disinformation
concerning high-profile criminal investigations or undermining the public
opinion of police authorities may also be seen as conflicting with this
interest. Respective case law is, however, as of yet, to the knowledge of
the author, not available. Nevertheless, an analogy may be drawn from
disputes concerning expressions weakening the authority and impartiality
of the judiciary.47
4.3.3.4 Protection of Reputation or Rights of Others
The conflict with reputation or rights of other individuals is present
primarily in cases of defamatory media content or less extreme instances
of hate speech. Manifestations of hate which constitute the basis for
the restriction of freedom of expression in this form include expressions
supporting terrorism,48 condoning war crimes,49 inciting religious
intolerance,50 insulting state officials,51 or containing hateful defamation52
(ECHR 2019c, 13–18). The defamatory expressions were partially
discussed earlier with regard to the duties and responsibilities of journalists
in relation to their content and shall be further delved into in the next
section.
46Saszmann v. Austria (inadmissible), no. 23697/94, ECHR 1997.
47Kudeshkina v. Russia, no. 29492/05, §81, ECHR 2009.
48Leroy v. France, no. 36109/03, ECHR 2008; Stomakhin v. Russia, no. 52273/07,
ECHR 2018.
49Lehideux and Isorni v. France, no. 24662/94, ECHR 1998.
50 ˙I.A. v. Turkey, no. 42571/98, ECHR 2005.
51Otegi Mondragon v. Spain, no. 2034/07, ECHR 2011; Stern Taulats and Roura
Capellera v. Spain, no. 51168/15, 51186/15, ECHR 2018.
52Pihl v. Sweden (inadmissible), no. 74742/14, ECHR 2017; Savva Terentyev v. Russia,
no. 10692/09, ECHR 2018.
4 LABELLING SPEECH 123
4.3.3.5 Protection of Health or Morals, Confidence of Information
Fake news is unlikely to affect the other listed legitimate interests given
that protection of morals mostly concerns obscene art expressions,53 and
confidential information is unlikely to be divulged as disinformation.
4.3.4 Necessary in a Democratic Society
Even action based on an adequate legal basis and pursuing a legitimate
aim may not be deemed a permissible restriction of the freedom of expression
unless found necessary. This test of proportionality in a narrow sense
is perceived as the most important part of the three-part proportionality
test (Ajevski 2014, 126). The assessment of proportionality reflects
the principles governing a democratic society (Bychawska-Siniarska 2017,
44). The restrictive action must therefore be an appropriately strong reaction
to a ‘pressing social need’.54 In essence, this is the aspect on which
most ECHR cases are decided (Ajevski 2014, 126), and it was therefore
partially formalised in the case law through a set of interpretative principles
for the meaning of the phrase ‘necessary in a democratic society’.
These state the following:
The adjective ‘necessary’ is not synonymous with ‘indispensable’, neither
has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’,
‘reasonable’ or ‘desirable’ … the Contracting States enjoy a certain but
not unlimited margin of appreciation in the matter of the imposition of
restrictions, but it is for the Court to give the final ruling on whether
they are compatible with the Convention … the phrase ‘necessary in a
democratic society’ means that, to be compatible with the Convention,
the interference must, inter alia, correspond to a ‘pressing social need’
and be ‘proportionate to the legitimate aim pursued’ … [and that] those
paragraphs of Articles of the Convention which provide for an exception
to a right guaranteed are to be narrowly interpreted.55
53Muller and Others v. Switzerland, no. 10737/84, ECHR 1988; Vereinigung
Bildender Kunstler v. Austria, no. 68354/01, ECHR 2007.
54The Observer and the Guardian v. the United Kingdom, no. 13585/88, §40, ECHR
1991.
55Silver and others v. the United Kingdom, no. 5947/72, 6205/73, 7052/75,
7061/75, 7107/75, 7113/75, 7136/75, §97, ECHR 1983.
124 F. KASL
The principles guide the ECHR in specific cases where consideration of
the content of the expression, the circumstances of its dissemination, and
the role of the author create the context of their application. This context
then affects the available margin of appreciation for the state authorities
in a way revealed throughout this chapter. Therefore, classification
of the expression as political speech limits the margin for state intervention,
whereas identification of the author as a journalist accentuates
the duties on his or her part in order to retain the freedom of expression.
In this regard, the particularities of a given set of fake news or
propaganda content may justify proportionate restrictive measures, such
as post-publication censorship, but the variety also provides for limits
on generalised or generic restrictive measures of expressions categorised
under disinformation in a broader sense.
4.4 Expressions Infringing
upon the Fundamental Rights
or Freedoms of Others
As mentioned above, when considering speech in conflict with the fundamental
freedoms or rights of others, the case law developed an important
distinction between content that constitutes verifiable facts and that which
is a mere sum of an author’s opinions. This distinction is highly relevant
because, whereas the facts can be checked against sources and refuted,
opinions include value judgements which cannot be subject to a test
of truth, and their restriction would in effect infringe upon freedom of
thought as such.56 In fact, value judgements concerning political questions
enjoy an even greater level of protection as they are perceived as
a crucial component in a democratic society (Bychawska-Siniarska 2017,
78). This perspective stands behind some of the challenges in the qualification
of fake news under the Convention as they often fall within the
grey zone of speculative or manipulative pieces, which may distort facts
but do so without full fabulation. Therefore, if free speech in the form
of diverse personal value judgements on political matters retains a high
56Lingens v. Austria, no. 9815/82, §46, ECHR 1986; Oberschlick v. Austria, no.
11662/85, §63, ECHR 1991; Dichand and Others v. Austria, no. 29271/95, §42, ECHR
2002.
4 LABELLING SPEECH 125
level of protection, the authorities in many cases lack a reliable mechanism
or framework to distinguish between these categories and need to
limit restrictive measures accordingly. It is mainly the risk of false positives
which acts as an obstacle in legitimising some of the widely aimed
measures against disinformation and propaganda. The legal framework of
the Convention may provide a better setting for the restriction of fake
news on a case-by-case adjudication based on conflict with the rights and
freedoms of others. This is, however, unlikely to provide an adequate and
timely response to the issue given its current scale.
The traditional avenue explored with regard to truthfulness of allegations
concerns journalistic content deemed defamatory by the affected
party. In principle, the author of a comment must in case of a dispute
prove his defamatory assertions of facts are based on the truth—in other
words, follow from verifiable sources. There is, however, a more nuanced
balancing required. The role of media as a ‘public watchdog’57 provides
it with a particularly important position with regard to issues of public
concern. In such capacity, ECHR case law58 established that the message
or alternative voice may be more important than adequate fulfilment of
journalistic standards, for instance, the thorough verification of sources.
There is no specific definition of issues which constitute a matter of public
concern; however, the case law deduced this aspect in various situations
concerning issues in the public domain,59 concerning public positions,60
or public financing.61
This does not create a basis for fake news per se, but it indicates that
the requirements of journalistic duties can be modified depending on
the context of the expression. Based on the case law of European high
courts,62 as well as the ECHR,63 the Venice Commission identified ten
57Bergens Tidende and others, no. 26132/95, §57, ECHR 2000.
58Thorgeirson v. Iceland, no. 13778/88, §65, ECHR 1992.
59Sürek v. Turkey (No. 2), no. 24122/94, ECHR 1999.
60Guja v. Moldova, no. 14277/04, ECHR 2008.
61 ˙Izzettin Dogan and others v. Turkey, no. 62649/10, ECHR 2016.
62Reynolds v. Times Newspapers Limited, Highest Court of the United Kingdom 1999;
Böll case, Bundesverfassungsgericht 1998; no. I. US 156/99, Constitutional Court of the
Czech Republic 2000; no. 1 BvR 1531/96, Federal Constitutional Court of Germany
1998; no. 2001/19, Supreme Court of Norway 2001; no. 144/1998, Constitutional
Court of Spain 1998; no. 28/1996, Constitutional Court of Spain 1996.
63Bladet Tromsø and Stensaas V. Norway, no. 21980/93, ECHR 1999.
126 F. KASL
core factors to be considered in this balancing. These include, among
others, the seriousness of the allegation, its source, attempts at its verification,
urgency of the matter, the tone of the article, and circumstances
of its publication (Venice Commission 2004, 4). Additionally, journalistic
standards as such are not a unified set of universal principles but rather a
dynamic set of best practices that is itself developing based on the transformation
of the media environment (Friend and Singer 2015). There
are particular efforts towards transitioning the traditional prerequisites for
quality journalism into the online environment (Chapman and Oermann
2019, 3). The abovementioned aspects constitute the basis for a good
faith defence, as recognised by ECHR case law.64 As Bychawska-Siniarska
summarises, ‘Where a journalist or a publication has a legitimate purpose,
the matter is of public concern, and reasonable efforts were made to verify
the facts, the press shall not be liable even if the respective facts prove to
be untrue’ (Bychawska-Siniarska 2017, 78).
The measured acceptance of allegations or rumours as part of the
press is established in ECHR case law.65 There is, however, an important
distinction between rumours or unfitting allegations based on good faith
journalistic research and disinformation and propaganda. The intention
of the author to mislead or manipulate through expression is contrary
to the requirement of bona fide action and appropriate duty of care
when assessing the sources (Venice Commission 2004, 4). As such, a
good faith defence for disinformation as a form of journalistic expression
is unlikely to hold up under judicial review. Nevertheless, as already
discussed earlier in this chapter, this conclusion has only limited relevance
in the context of online media, where professional standards applicable
to journalists cannot be readily extended to all commentators and
contributors. Furthermore, notwithstanding the conclusion that a case
against particular disinformation targeting an individual is in principle
likely to be strong, these legal considerations cannot be directly transposed
to measures by public authorities in combatting disinformation or
propaganda through measures of scale.
64Dalban v. Romania, no. 28114/95, §50, ECHR 1999.
65Bladet Tromsø and Stensaas V. Norway, no. 21980/93, §59, ECHR 1999; Dalban
v. Romania, no. 28114/95, §49, ECHR 1999; Thorgeirson v. Iceland, no. 13778/88,
§65, ECHR 1992.
4 LABELLING SPEECH 127
Acknowledging these limitations, an alternative approach is being
developed for the online environment. This builds on exploiting the
unique position of providers of online environments where information
is shared and disseminated. Platforms which host user-generated
content projected themselves for a long time in the neutral role of
a mere storage service provider; however, growing political and regulatory
pressure (Fioretti 2018) is pushing them increasingly into the
spotlight as active moderators and contributors to the dissemination and
distribution of content online. It is therefore through the legal framework
of (co)liability of these hosting providers that measures regulating
disinformation and propaganda can be taken and expanded.
4.5 Disinformation Suppression
Through Hosting Provider Liability
The regulatory benefits of enforcing restrictions on disinformation and
propaganda through requirements set for hosting providers originate
from their uniquely strong position in the technical sense. The hosting
provider effectively creates the online environment where the information
is disseminated and can be accessed by users through the facilitation of
underlying data storage. Such an entity is therefore optimally positioned
for the supervision of stored content, in particular when present day
means of big data analysis and content recognition are taken into consideration.
In the default setting, such a provider has a shared liability for the
content with the user due to his contribution to facilitating the dissemination.
However, efforts towards encouraging innovation and development
of internet services in the European Union before the turn of the millennium
led to the adoption of the Directive on electronic commerce66
(Pearce and Platten 2000, 363 et seq.), which provided for a protective
setting of exceptions from this liability on the basis of ‘safe harbour’
provisions.67 One of these applies to hosting providers, that is, platforms
for user-generated content, such as social media or various news portals.
The directive set conditions for the application of safe harbour on hosting
providers consisting of (i) no actual knowledge about the illicit content,
66Directive 2000/31/EC of the European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society services, in particular electronic
commerce, in the Internal Market (Directive on electronic commerce).
67Art. 12–14 of Directive on electronic commerce.
128 F. KASL
(ii) independence of the content creator from the provider, and (iii) expeditious
removal of the content upon obtaining such knowledge (through
a so-called ‘notice and action’ flagging framework).68 The applicability of
this protective provision is increasingly challenged with respect to various
forms of hosting services (Friedmann 2014, 148 et seq.; Husovec 2017b,
115 et seq.) and with regard to the negative impact of newly emergent
issues like disinformation.
The pressure on major hosting providers is a combination of voluntary
basis cooperation with the European Commission and the gradual development
of interpretation to their detriment based on relevant case law.
The overview of EU joint and coordinated actions against disinformation
(European Commission 2019a) indicates the increasing complexity of the
cooperative network and consistently developing the basis of measures
implemented by the hosting providers pursuant to impulses originating
from the European Commission.
The initial signals of a turn in the tide of interpretation were provided
by the CJEU through its case law69; however, it was mainly the ECHR
which established the crucial precedents for today’s approach to content
moderation through platform provider activity. Notwithstanding the
limited control of the platform over user-generated content as such, the
ECHR held as applicable the participation of the platform in the liability
for such content (Husovec 2013, 109). Authoritative here was the Grand
Chamber decision in the case Delfi AS v. Estonia.70 The court concluded
that in case of an insufficiently responsive action against illegal content,
the platform provider is to be held liable and adequate sanction is permissible
under Article 10 of the Convention. Through this, an alternative
approach to curbing disinformation was thereby opened—in other words,
through the moderating role of the hosting providers (Husovec 2016,
17). Nevertheless, there are limits to the pressure which can be put on
these intermediaries. Resulting from the subsequent case law,71 it still
remains essential to subject each piece of content to a balancing test
assessing its impact and permissibility through the above-discussed criteria
68Art. 14 of Directive on electronic commerce.
69Google France SARL a Google, no. C-236/08, C-237/08, C-238/08, CJEU 2010;
L’Oreal and others, no. C-324/09, CJEU 2011.
70Delfi v. Estonia, no. 64569/09, §147 et seq., ECHR 2015.
71Magyar Tartalomszolgaltatok Egyesulete and Index.hu Zrt v. Hungary, no.
22947/13, §78 et seq., ECHR 2016.
4 LABELLING SPEECH 129
for conflict between fundamental rights and freedoms (Council of Europe
2018, 7 et seq.). Furthermore, the obligations of the provider need to be
proportionate to its size and reach, meaning that small media platforms
unknown to the wider public are allowed to have less strict management
of user-generated content than those of greater renown.72 The pressure
mounted on the platforms is not limited to the dissemination of
disinformation and ranges across various forms of widely persisting illicit
content, be it hate speech (Heldt 2019) or unlicensed copyright content
(European Commission 2019b).
All these regulatory measures signify the growing urgency for reliable
classification and detection of content which should be restricted
from dissemination by the hosting providers. However, the diversity
of forms it may take makes such a goal tenaciously elusive. Nevertheless,
unless sufficient efforts are put towards developing tools and
frameworks for classification and identification of such content under
independent and neutral conditions, the regulatory mechanism has a
likely effect of inducing private censorship through the hosting providers
(Kuczerawy 2015, 46). We can already see the negative impact of unsuitable
applications of the framework in Russia through multiple cases of
unjustified collateral blocking of internet content (Husovec 2017a). The
issue, however, reaches beyond the scope of the ECHR’s jurisdiction,
necessitating an orchestrated global response (Aswad 2018).
This is a problematic outlook not just with regards to the influential
role of major platforms but also due to the limited capacity of public
institutions to exert necessary control over minor platforms which may
play a disproportionately large role in disinformation dissemination.
4.6 Conclusions
This chapter provided an additional legal perspective on the topic of disinformation
and propaganda dissemination through the prism of freedom
of speech under the European Convention on Human Rights. At first,
the term disinformation was confronted with this legal framework and
defining characteristics were discussed. The core aspects established as
relevant include the provability of its untruthfulness, qualification of its
purpose, and disclosure of the author’s intention. The focus was then
72Pihl v. Sweden (inadmissible), no. 74742/14, §31, ECHR 2017.
130 F. KASL
turned to the umbrella role of the Convention and ECHR case law in
the European legal environment and its relation to the Charter of Fundamental
Rights of the European Union. The reader was then introduced to
the basic concepts of this framework, including the definition of freedom
of expression as a fundamental right, its constituting components, and the
role of the margin appreciation doctrine.
An important aspect of disinformation highlighted throughout the
chapter is its versatility and varying degree of illegality. For this reason,
the application of scale rather than bipolar qualification was continuously
emphasised. The freedom of speech framework functions primarily as a
countermeasure against censorship and the forced restriction of democratic
discussion. This then demands high standards of reliability from
the measures and tools aimed at labelling speech as disinformation or
propaganda. From this legal perspective, there is a fine gradation in the
qualification of expressions, which may spell the difference between the
exercise of a fundamental freedom and abuse of its protective framework
under the Convention.
The subsequent text concerned relevant features of the expression that
the ECHR is taking into consideration while weighing its protection
under the Convention. There are extreme forms of expression which are
excluded from protection altogether, primarily represented by discriminatory
hate speech, but most forms of expression considered disinformation
shall fall under the protection of Article 10 of the Convention and can
therefore be restricted only pursuant to interference permitted under this
framework.
Such permissible restriction must pass the three-part proportionality
test establishing that (i) the interference is prescribed by law, (ii) it is
aimed at the protection of one of the interests or values listed in the
second paragraph of Article 10, and (iii) it is a necessary measure in
a democratic society. The case law generally leans towards a restrictive
interpretation, allowing for broad freedom of speech.
The text of the chapter then follows these three core components
and elaborates on their applicability with respect to measures of combatting
speech labelled as disinformation or propaganda. The conclusion
concerning state interference is that efforts against broadly or generically
defined disinformation would most likely be impermissible under
the Convention and case-by-case assessment of expressions is due in this
regard. It is mainly the risk of false positives which acts as an obstacle in
legitimising some of the widely aimed measures.
4 LABELLING SPEECH 131
The second setting discussed is when the state provides protection to
individuals against expressions infringing upon their fundamental rights
or freedoms. This mostly concerns the extensively adjudicated sphere of
defamatory disputes between individuals and media. Particularities of this
setting are described, such as the important distinction between content
that constitutes verifiable facts and that which is a mere sum of author’s
opinions. The disinformation phenomenon is then looked at from the
perspective of political expressions; in the context of the role of media
as a ‘public watchdog’; as well as with acknowledgement of the modern
democratisation of online content creation and the subsequent challenges
to the established requirements for upholding journalistic standards. A
constituting feature of disinformation, the intention of the author to
mislead or manipulate, is highlighted as an important element which is
removing the option of bona fide protection commonly granted to the
media in this context.
The main issue with the previous setting is practical, primarily due to
limited scalability. For this reason, the currently prevalently pursued venue
for combatting disinformation and propaganda are actions by hosting
service providers, given that they share liability for the content with
the user due to their role in facilitating its dissemination. The measures
currently in place are mostly the consequence of a balanced pressure from
European authorities and the voluntary cooperation of the largest hosting
providers as well as a recent restrictive interpretation by the European
courts of the protective provisions shielding these providers from such
liability within the European Union.
Nevertheless, there are limits to the pressure which can be put on these
intermediaries, especially minor platforms, which may, however, play a
disproportionately large role in disinformation and propaganda dissemination.
The evaluation of content through the major platforms additionally
creates the threat of undue private censorship. This makes the development
and validation of detection and analytical tools under independent
and neutral conditions an increasingly crucial issue.
132 F. KASL
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