Constitutional protection of lies? Fake news, freedom of expression and democratic procedures

摘要

The current doctrine of freedom of expression in Europe does not exclude the prohibition of the disclosure of inaccuracies, thus they cannot claim universal constitutional protection. False statements may be limited in some cases, but their general prohibition is difficult to imagine. At the same time, they are a serious and massively problematic issue for public communication and public affairs, especially on major online platforms. The platforms themselves are experimenting with different tools, which is strongly encouraged by the states. Suggestions for regulation have been found either contrary to the principles of freedom of expression or, presumably, ineffective. For the time being, states seem to accept that without the help of the platforms themselves they are unable to regulate the public sphere and are consciously handing over to the platforms their former exclusive state responsibilities and thus the setting of the boundaries of freedom of speech. This represents the failure of previous regulatory approaches and portends a particular elitism in online communication: conscious citizens interested in public life, who may even be willing to pay for in-depth information, will have precedence over those who are the potential targets for mass lies since they use the World Wide Web without background knowledge, material and financial resources or media literacy. There will be knowledgeable, thorough and accurate citizens who can distinguish between reality and injustice, and there will be the rest. Just like in the traditional media world before the Internet.