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    Misinformation, Disinformation and Mal-information

    Module 8: ‘False news’, misinformation and propaganda

    The Problem Statement

    Misinformation is anathema to quality of journalism and the circulation of trustworthy information which complies with professional standards and ethics.(1) However, dis- and misinformation are not new but rather have become increasingly prevalent as they are fuelled by new technologies and rapid online dissemination of communications.  The consequence is that digitally‑fuelled dis- and misinformation, especially in contexts of polarisation, risks eclipsing quality journalism, and the truth.(2)

    Increasingly, the strategies to combat dis- and misinformation are more social, educational and technical in their character in order to ensure that the right to freedom of expression is not violated by over-broad legislative provisions which criminalise this sort of speech.  Addressing the dis- and misinformation ecosystem, therefore, requires a critical assessment of the reasons for the dissemination of this sort of content and the establishment of MIL campaigns.(3) In effect, combatting dis- and misinformation, at this stage, falls more within the realm of advocacy and education than it does litigation.  The limited litigation in this space bears testament to this.  However, this is likely to change as digital rights litigators engage in more strategic and test case litigation seeking to mitigate dis- and misinformation while protecting and promoting freedom of expression.

    Defining false information
    Disinformation Disinformation is information that is false, and the person who is disseminating it knows it is false. “It is a deliberate, intentional lie, and points to people being actively disinformed by malicious actors”.
    Misinformation Misinformation is information that is false, but the person who is disseminating it believes that it is true.
    Mal-information Mal-information is information that is based on reality but it is used to inflict harm on a person, organisation or country.

    Causes of dis- and misinformation

    To understand how to combat dis- and misinformation, it is useful to first understand how it spreads.  With the advent of the information age and the internet, information is spread more rapidly, often with the click of a mouse.(4) Equally, the speed at which information is transmitted and the instant access to information which the internet provides has caused a rush to be the first to publish information, as well as the often thoughtless retransmission or promotion of the statements of others.  This, alongside more insidious practices such as the intentional distribution of disinformation for economic or political gain, has created what the UN Educational, Scientific and Cultural Organisation (UNESCO) refers to as a “perfect storm”.(5)

    UNESCO identifies three causes enabling the spread of dis- and misinformation:

    • Collapsing traditional business models.  The rapid decline in advertising revenue and the migration of advertising to digital actors means that traditional newsrooms have far less resources. This, in turn, has  led to reduced quality news and less time for “checks and balances”.  It also promotes “click-bait” journalism.(6) As a result, legacy media is bleeding audiences, with media consumers moving to “peer-to-peer” news products offering “on demand-access”.  Importantly, peer-to-peer news has no agreed-upon ethics and standards.
    • Digital transformation of newsrooms and storytelling.  As the information age develops, there is a discernible digital transformation in the news industry.  This transformation causes journalists to prepare content for multiple platforms, limiting their ability to properly interrogate facts.  Often, journalists apply a principle of “social-first publishing” whereby their stories are posted directly to social media to meet audience demand in real-time.  This, in turn, promotes click-bait journalism and the pursuit of “virality” as opposed to quality and accuracy.(7)
    • The creation of new news ecosystems.  With increasing access to social media platforms, users can curate their own content streams and create their own “trust networks” or “echo chambers” within which inaccurate, false, malicious and propagandistic content can spread.  These new ecosystems allow dis- and misinformation to flourish as users are more likely to share “exciting” or sensationalist stories and are far less likely to properly assess sources or facts.  Importantly, once disseminated, a user who becomes aware that a statement may constitute misinformation is largely unable to “pull back” or correct it.(8)

    These causes continue to pose difficulties for newsrooms, journalists, and social media users as the new news ecosystems, in particular, enable malicious practices and actors to flourish.  However, as discussed, there is a fine line between seeking legitimate ways to combat the spread of dis- and misinformation online and violating the right to freedom of expression.

    WASHLITE v Fox News

    On 2 April 2020, the Washington League for Increased Transparency and Ethics (WASHLITE) instituted proceedings against Fox News, a right-wing American news network, claiming that “Fox’s repeated claims that the COVID-19 pandemic was/is a hoax is not only an unfair act, it is deceptive and therefore actionable under Washington’s Consumer Protection Act.”(9) WASHLITE sought a declaration to this effect and an injunction (interdict) prohibiting repeated statements on Fox News stating that COVID-19 is a hoax.  In its findings, the Washington Superior Court found that WASHLITE’s goal was “laudable” but that its arguments ran “afoul of the protections of the First Amendment”, which guarantees right to freedom of expression, and hence dismissed the case.

    How to combat dis- and misinformation

    Effectively combatting dis- and misinformation remains a pressing contemporary issue, with various remedies posited by jurists, academics, and activists.  Notably, Justice Anthony Kennedy of the United States Supreme Court, in his majority decision in United States v Alvarez(10) held: “The remedy for speech that is false is speech that is true.  This is the ordinary course in a free society.  The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight‑out lie, the simple truth.”(11) MIL strategies and campaigns proposed by UNESCO seek to operationalise the position proposed by Justice Kennedy and provide a holistic approach to combating dis- and misinformation, without limiting the right to freedom of expression.


    1. Id. Back
    2. Id at p. 70. Back
    3. Id at p.55. Back
    4. Id. Back
    5. Id at p. 57. Back
    6. Id at pp. 57-8. Back
    7. Id at pp. 59-61. Back
    8. Washington League for Increased Transparency and Ethics v Fox News, Plaintiffs Complaint for Declaratory and Injunctive Relief, 2 April 2020 (accessible here: Back
    9. United States v Alvarez, 567 U.S. 709 (2012) (accessible at: Back
    10. Id at pp. 15-6. Back