Freedom of Expression and Fake News

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“Fake News”, i.e. “Lies”, are buzzwords used by politicians since almost two years in order to put oneself as a victim of supposed press campaigns. This is a dangerous tendency, which undermines one of the most important freedom rights of democracies, the right of freedom of expression (in Germany protected by Article 5 Para 1 of the German Constitution)

Why is this so?

Freedom of expression protects – no wonder – the freedom to express an opinion. To state wrongful facts is not protected by this constitutional right. Freedom of expression may in Germany only be limited by formal law. Such a formal law for example is the Criminal Law, which for example forbids the denial of the Holocaust and if someone degrades another person, he/she might be punished for defamation and so on.

The press in many instances publishes opinions or the suspicion of facts. How such suspicions should be published is stipulated by law.

Opinions are defined by a “pro“ or “against” and may not be proven. Facts are provable.

When someone names an opinion as “fake fact”, i.e. fake news or lie, or marks the publishing of a suspicion as “wrongful facts”, this person attempts to restrict the right of freedom of expression, of freedom of opinion and the right of free press. This happens because the so “entitled” victim wants to prohibit the publishing of opposing opinions.

These are however not press campaigns but the issuance of opinions or the statement of certain suspicions allowed in democracies. A person, which is exposed to the public like a politician, must be able to cope with opinions without trying to eliminate such “undesired” opinions.

If such a person tries to reinterpret a disagreeable opinion into a “fake news” in order to being able to apply for an injunctive relief granted by a court, this shows a highly questionable understanding of democracy and freedom rights. This is of course not forbidden though.

The one, who is the addressee of such an injunctive relief should seek legal counsel with an attorney, who has a sound understanding of freedom rights for him to act against such an injunctive relief. Of course even courts may be fallible.

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