The European Court of Human Rights first used the term “fake news” in a decision. This is a case won at the ECHR by a citizen of Poland Zenon Brzeziński, a candidate in the elections of local administrations in southern Poland. During the campaign, Brzeziński elaborated an electoral booklet criticizing the members of the local administration.
During the campaign, Brzeziński produced an election booklet which criticised members of the outgoing local government. The booklet discussed poor local water and sewage systems, and criticised the mayor for implementing unfavourable contracts with a water company. The booklet also criticised another local councillor for having received ‘municipal subsidies for a company she managed’.
Following the distribution of the booklet, the mayor and councilor initiated an action against Brzeziński under section 72 of the Local Elections Law. The provision allows applicants to address a regional court for an order restricting the publication of campaign materials or statements containing “false data or information”, the court being required to examine the application “within 24 hours.”
The judges made their decision several hours later, finding that the booklet was “fake”, “malicious” and “exceeded the forms allowed by electoral propaganda”.
Brzeziński filed a claim with the European Court in 2007, demanding a violation of his right to freedom of expression, but it took 12 years for the case to go to a ruling. Ultimately, however, the European Court unanimously ruled that there was a violation of Article 10.
First, the Court noted that the campaign booklet was published during a local election campaign, targeting local government and elected officials, and on a public interest issue. Crucially, the Court held that the language used in the booklet was not “vulgar or insulting”, and was within the limits of “exaggeration and provocation” and the “ordinary tone” of “political debate at local level”.
The use of the term “fake news” was incredibly disappointing, given that independent reports from both the Council of Europe (here) and the European Union have found that the term should not be used, as it is “woefully inadequate”, “misleading”, “appropriated by politicians around the world to describe news organisations whose coverage they find disagreeable”, and a “mechanism by which the powerful can clamp down upon, restrict, undermine and circumvent the free press”.