The criminalization of fake news in Portugal

: assessing the need to solve tomorrow's problem, today

Abstract

Fake News are not, by any means, a phenomenon exclusive to our times; however, through globalisation and digitalisation, they have grown to become one of the challenges of our times, as can be confirmed by their intervention in pivotal moments such as the 2016 US Presidential Elections and the 2020 Covid-19 Global Pandemic. A great conceptual confusion leads different realities such as mis-, dis- and mal-information to be lumped together and erroneously treated interchangeably, adding another unnecessary layer of complexity to an issue that is not, per se, easy to resolve. In this sense, and after clarifying the reality we are dealing with (disinformation as the dissemination of knowingly false, public interest content, shared by the agent with the intent to mislead the target audience, obtain a gain and cause public harm), recognising its challenges and implications (such as their impact on human rights and their contribution to the erosion of trust and confidence in democratic institutions) and accounting for its potentiating factors (such as the anatomy of modern news consumption, the role of social media, Artificial Intelligence, content bubbles and echo chambers, etc.), it becomes relevant to reflect on what society’s reaction to it ought to be. While several possible reactions outside the legal sphere may be identified (such as investing in media literacy and quality journalism, etc.), the usefulness of legal intervention is undeniable. Whether this intervention requires legal innovation (or whether it can stand on the shoulders of existing legislation) and whether or not such innovation lies in the realm of criminal law must be pondered against other interests with resort to a proportionality assessment.

Date of Award	13 Dec 2022
Original language	English
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Pedro Freitas (Supervisor)