COMPLEXITIES IN THE LEGAL CONCEPT OF FAKE NEWS

AMBIVALENCE, INACCURACY AND LEGITIMACY TO DEFINE

Abstract

The spread of fake news and false information during election periods has become a public order problem, as it threatens democracy and the regularity of political processes. In this context, the use of the term “fake news” to designate this phenomenon was popularized. This article analyzes the challenges in the legal conceptualization of this expression, literally translated as "fake news". Thus, the definition of the term remains a difficult task, due tothree main questions: the ambivalence of the expression, used to designate untrue information but also to discredit unfavorable information; the inaccuracy of language, given the difficulty in determining the range of terms corresponding to “fake” and “news”; and the dispute - between Legislature, Judiciary and private actors - for legitimacy to establish the conceptualization and parameters for identifying fake news. The article discusses each of these issues, proposing ways for the legal definition of the phenomenon. In this sense, it is restricted to the meaning of “false content proliferation” and proposes the expression “verifiably untrue information”, extending the extension of the type of content to be evaluated, placing as a criterion the possibility of verifying evidence supporting the allegations. Finally, it identifies the shared legitimacy of the Legislative, Judiciary and digital players to say what is “false information” and recommends an orchestrated effort between institutions to contribute to conceptualize and identify fake news.