Critical Review of Governance

• Baade, Björnstjern 1

Abstract

In light of current efforts at addressing the dangers of fake news, this article will revisit the international law relevant to the phenomenon – in particular, the prohibition of intervention, the 1936 International Convention on the Use of Broadcasting in the Cause of Peace and the 1953 Convention on the International Right of Correction. It will be argued that important lessons can be learned from the League of Nations’ efforts in the interwar period and the United Nations’ (UN) activities in the immediate post-World War II era, while taking into account the new challenges that arise from modern communication technology. Taking up the League of Nations’ and UN’s distinction between false and distorted news, the international legal framework will be tested, in particular, against the coverage of the 2016 ‘Lisa case’ by Russian government-funded media. This coverage is widely considered to be fake news aimed at destabilizing Germany’s society and institutions. The article argues that false news can be subject to repressive regulation in a sensible manner. Distorted news, however, will have to be tolerated legally since prohibitions in this regard would be too prone to abuse. A free and pluralist media, complemented by an appropriate governmental information policy, remains the best answer to fake news in all of its forms. Due diligence obligations of fact-checking, transparency and remedies that are effective despite difficulties in attribution, and despite a lack of universal acceptance, could likewise be conducive.

• 1Senior Research Fellow, Free University Berlin, Germany