Guest post by Jaime Campaner: The Spanish government’s fight against fake news: who will watch the watchers?

I am pleased to host this guest post by Dr Jaime Campaner, criminal lawyer and professor in procedural and criminal law at the University of the Balearic Islands.

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The Spanish Ministry of Justice has recently announced a review of the legal mechanisms to guarantee the right to receive trustworthy information. Any initiative to strengthen a fundamental right must be praised. Nevertheless, I am afraid that the way proposed, another potential fattening of the already obese Criminal Code, is mistaken and Spanish law already provides sufficient mechanisms to challenge a reality which is not new, but which in the last years has reproduced at breakneck speed due to the capacity of social networks to spread fake news. However, it is not possible to fight against fiber optics with the law alone; still less if it leads -once again- to a collapse, which is unaffordable for the administration of Justice.

I have applauded several of the initiatives of the new minister, but this announcement seems to me to be an error and should be reconsidered. It is not possible to legislate based on gut-feelings, however “fair” they may seem, and even less so if the stimuli that give rise to the legislative initiative take place during the period of a state of alarm.

The law, and especially the criminal law, is not a magic formula. It would be a mere discussion about labels (that is, focusing on the words and not on the substance of the matter) to announce the review of legal instruments when, on the one hand, we should be aware that the solution is by educating citizens from an early age; and, on the other, both the Spanish law on the protection of the right to honor, privacy and self-image, as well as the Criminal Code, already provide for civil and criminal protection mechanisms against such conduct.

The key, as I have mentioned, lies in education. It is not acceptable that a democratic State should select what information citizens can receive just because -and this is the harsh reality- they are not prepared to analyze the plausibility of a news item or to test the reliability of the source minimally. The government -although it does not say so- starts from an absolutely certain premise that causes embarrassment: a large part of Spanish society does not read and suffers from a serious lack of reading comprehension, and also assumes that any information is true just because it appears in the press.

Actually, we have seen an embarrassing chain of angry comments on social networks on the occasion of a clearly sarcastic piece of news, entitled “The Government buys 50 million noses with glasses by mistake”,which was published in a strictly satirical medium accompanied by a comical photomontage of members of the government wearing glasses and plastic noses with a built-in false moustache, in true Groucho Marx style.

Is this the society that our leaders want to perpetuate? A society unable to discern, to analyze, to form their own free opinion by resorting to reliable sources of contrast; a society that is governed by the frantic uncritical forwarding of whatsapps. The government should provide citizens with self-help tools (teaching them to think for themselves) before acting as a guardian for their wards (thinking for them, going to court).

To the above problem is added the eternal problem posed by Juvenal: quis custodiet ipsos custodes? (who will watch the watchers?). How can citizens choose between different options if the government filters the information, rushing to go to court (even obtaining injunctions such as gagging orders against the publications)? This would be a double-edged sword, because the other side of the right to be protected (that is the right to transmit truthful information) would also be subject to a gag, and such a restriction would cut off precisely the right to receive that information.

Jaime Campaner

3 thoughts on “Guest post by Jaime Campaner: The Spanish government’s fight against fake news: who will watch the watchers?

  1. Self evident post, but brings up the ethicality of any censorship and the lack of common sense and plausibility of some members of society regardless of nationality

  2. That post makes an assumption that, in the wake of the Cataln independence movement and to which Majorca must be closely allied, Majorcans – including the leraned Professor with a mallorquí name, have accepted unequivocally the purview and coverage of the manland Spanish Criminal Code – the Código Penal. We Britons, who had visited the Balearics before there was any Univesity thereon and aware of a similar independence conundrum on the Canary Islands, might be taken aback by that unquestioning proposition.

  3. A political party in government is going to make sure that it’s voters only hear true statements….

    [img]https://media.giphy.com/media/v7njXQ6iZLDQQ/giphy.gif[/img]

    Why is this so hard..

    Either a platform does not police content and can be treated as a common carrier. In which case you pursue the poster, subject to a court decision that particular content is illegal and the carrier take it down

    Or a provider polices content, in which case they get treated as a publisher and are liable for everything that appears…

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