A Guided Tour of Disinformation Policy: Definitions and Why They Matter

by | Dec 19, 2023 | Blog | 0 comments

By Riley Galligher and Samantha Tanner

This is part 2 of our series “A Guided Tour of Disinformation Policy”. To read the first part, click here.

The rise of disinformation has become a prominent concern and topic of discussion among the public, while its impact on individuals, politics, and the economy continues to be a subject of ongoing research and debate. Words like “disinformation,” “misinformation,” and “fake news” have become commonplace in daily conversations, political speeches, and newsrooms. Still, it is difficult to ascertain what individuals mean when they employ these terms. As the literature about disinformation grows richer, we see an increasingly apparent lack of cohesion among the terminology used to describe disinformation and information disorder. How disinformation is defined, especially in policy, is crucial because it shapes the scope of regulatory measures, the direction of research, and the allocation of resources. This section will examine the conceptual bounds of disinformation through its utilization in academia, political rhetoric, and government policies. We will find ambiguity and confusion over the term at each level of analysis and a concerning trend of disagreement and disorganization that has genuine legal implications for those subject to disinformation laws.

Academic Conceptualization of Disinformation

Scholars continuously propose, critique, and refine new ways to think about disinformation. There is no one uniform definition that can organize the policy discussion. However, three primary definitions of disinformation stand out amongst disinformation policies. These three definitions are similar but have subtle differences that can reveal the emphasis that these authors place on disinformation for their use.[1]

Source

Definition

Research Using/Crediting this Definition

The European Commission’s Action Plan Against Disinformation

“verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and may cause public harm”[2]

Ignatidou, Sophia. EU–US Cooperation on Tackling Disinformation. October 3, 2019.

Matasick, Craig, Carlotta Alfonsi, and Alessandro Bellantoni. OECD Working Papers on Public Governance. Report no. 1993-4351. N.p.: Organisation for Economic Co-Operation and Development (OECD), 2020. https://doi.org/10.1787/19934351.

The European Commission’s High-Level Expert Group (HLEG).

“includ[ing] all forms of false, inaccurate, or misleading information designed, presented, and promoted to intentionally cause public harm or for profit”[3]

Kapantai, Eleni, Androniki Christopoulou, Christos Berberidis, and Vassilios Peristeras. “A Systematic Literature Review on Disinformation: Toward a Unified Taxonomical Framework.” New Media & Society 23, no. 5 (2021).

Craufurd-Smith, Rachael. “Fake News, French Law and Democratic Legitimacy: Lessons for the United Kingdom?” Journal of Media Law 11, no. 1 (2019): 52-81.

Durach, Flavia, Alina Bârgăoanu, and Cătălina Nastasiu. “Tackling Disinformation: EU Regulation of the Digital Space.” Romanian Journal of European Affairs 20, no. 1 (2020).

Wardle and Derakhshan in “Information Disorder”

Disinformation: Information that is false and deliberately created to harm a person, social group, organization or country.

Misinformation: Information that is false, but not created with the intention of causing harm.

Malinformation: Information that is based on reality, used to inflict harm on a person, organization or country.[4]

Tenove, Chris. “Protecting Democracy from Disinformation: Normative Threats and Policy Responses.” The International Journal of Press/Politics 25, no. 3 (2020). https://doi.org/10.1177/19401612209187.

Neo, Ric. “When Would a State Crack down on Fake News? Explaining Variation in the Governance of Fake News in Asia-Pacific.” Political Studies Review 20, no. 3 (2021): 390-409.

Mansell, Robin, Sonia Livingstone, Charlie Beckett, and Damian Tambini. Tackling the Information Crisis: A Policy Framework for Media System Resilience. N.p., 2019.

Cunliffe-Jones, Peter, Assane Diagne, Alan Finlay, and Anya Schiffrin. “Bad Law – Legal and Regulatory Responses to Misinformation in Sub-Saharan Africa 2016–2020.” Misinformation Policy in Sub-Saharan Africa, June 1, 2021.

Lee, Francis L. F. “What Constitutes Disinformation? Disinformation Judgment, Influence of Partisanship, and Support for Anti-Disinformation Legislation.” Journalism & Mass Communication Quarterly, 2022.

Colomina, Carme, Héctor Sánchez Margalef, and Richard Youngs. The Impact of Disinformation on Democratic Processes and Human Rights in the World. European Parliament, 2021.

McKay, Spencer, and Chris Tenove. “Disinformation as a Threat to Deliberative Democracy.” Political Research Quarterly 74, no. 3 (2020): 703-17.

The European Commission’s Action Plan Against Disinformation defines it as “verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and may cause public harm.” [5] Papers using this definition often characterize and cover disinformation from a European Union perspective.

The European Commission’s High Level Expert Group (HLEG) in 2018 employed a multi-dimensional approach to disinformation, “includ[ing] all forms of false, inaccurate, or misleading information designed, presented, and promoted to intentionally cause public harm or for profit.” [6] This definition is similar to the other European Commission definition, except that it does not specify that the information be “verifiably” false, which adds some burden of proof on those identifying information as disinformation.

Wardle and Derakshan developed a framework to visualize information disorder and its three components—disinformation, misinformation, and malinformation—using a Venn diagram to reveal overlaps between the dimensions of false and harmful information. Where misinformation is false information shared with no harmful intent, and malinformation is “genuine” information shared with harmful intent, disinformation is the combination of both: false information disseminated with harmful intent.[7]

The HLEG and the Action Plan Against Disinformation definitions make disinformation contingent on an intent to profit or cause public harm (the action plan also includes deceit). Wardle and Derakhshan specify no such requirement. Instead, they only require that there is harmful intent, which is a more expansive definition of disinformation. In addition, including “misleading” information in both European Commission definitions allows the designation of some information as disinformation that Wardle and Derakhshan may have judged as malinformation if it was correct information purposefully leaked or disseminated in a way to be misleading. These are small differences, but in articles seeking to analyze disinformation spread in various populations, these seemingly minute conceptual boundaries can impact how research is conducted and the conclusions drawn from such research. One can imagine, and we will explore later on, how these differences in conceptual boundaries can have even greater consequences when applied to national policy.

Fake News is also a term scholars have utilized to discuss disinformation, often referring to intentionally false news published by the media.[8] Though it has been used in academia to qualify and discuss disinformation for multiple years, former U.S. President Donald Trump popularized the use of the term to denounce news or information that an individual disagrees with, regardless of its veracity. This has created a debate around whether the term’s politicization has tarnished its usefulness and whether attempts should be made to reclaim ‘fake news’ for academic research. Freelon and Wells, in “Disinformation as Political Communication” argue that the term has been “[stripped of] any analytical value it may have once held” due to its transformation into a trigger word associated with extreme politics and authoritarian tendencies[9]. However, Irini Katsirea’s article on fake news notes that while words like disinformation may be less “politically loaded,” the term fake news is likely to remain “‘part of the vernacular [helping] people express their frustration with the media environment’” and should be examined further.[10] In her view, discontinuing academic research on fake news would be ignoring the reality of a concept that—as politically loaded or inadequate as it may actually be to describe disinformation—is regularly employed by citizens and politicians in their rhetoric and how they understand disinformation. Many disinformation laws are called or advertised as fake news laws, and it would be a disservice not to analyze how this may substantively impact the law’s structure and implementation.

Rhetorical Use of Disinformation in Politics

While academic research on disinformation often revolves around the nuances of definitions of disinformation, political rhetoric about disinformation varies. Generally, a politician’s own conceptualization of the term must be derived from the context of their speech. When discussing COVID-19 anti-vaxxers in 2021, US President Biden condemned those who spread “dangerous misinformation” on social media or TV by “peddling lies and allowing misinformation that can kill their own customers.” [11] In this instance, Biden seems to describe misinformation simply as lies, implying that they are spread by knowing actors. However, this depiction of misinformation may correspond closer with common conceptions of disinformation as false information spread knowingly, as the HLEG and European Action Plan definitions both describe. In a press conference in 2022, French President Emmanuel Macron referred to the dangers of foreign “propaganda” media in spreading disinformation, which adds a layer of urgency to disinformation by implicating foreign interference in France’s sovereign affairs.[12] Brazilian President Lula da Silva addressed the UN general assembly and credited his return to presidency as a triumph over “hatred, misinformation, and oppression.” [13] In these instances, misinformation is used to characterize an era of political turmoil in which intentionally falsified information (disinformation) was disseminated among the public, some of whom continued to share it without malintent (misinformation).

In these examples, each politician uses varied terminology to address disinformation, potentially blurring the lines between misinformation and disinformation, as observed in President Biden’s statements. Confusingly, misinformation seems to be a more popular term among politicians when referring to disinformation. However, journalists often use words like disinformation in their articles when reporting on such speeches. Politicians and journalists alike rarely make the definitions of these terms explicit. If you add in the influx of politicians that continually use fake news to condemn speech critical of themselves or their views—from South Korean President Yoon Suk Yeol raiding the homes of journalists accused of spreading fake news[14] to various American lawmakers using the terms to dismiss critical questions[15]—these terms quickly become confusing and inaccessible to the public. The conflation and interchangeable use of these terms means that individuals will likely define disinformation based on their local politicians’ or journalists’ rhetoric, creating further divergence in how disinformation is understood. When ambiguous disinformation laws are added to this mix, it leaves the public uncertain about the potential legal implications of their online speech and interactions.

Disinformation Definitions in Policy

In policy, differences in definition become even more consequential through their significant impacts on communication networks, individuals, and campaigns. This section examines two types of disinformation laws: ones with explicit definitions and robust explanations of sanctionable content, and those with ambiguous policies lacking clear guidance on terms like ‘disinformation’ or ‘fake news’.

  • Moldova’s Law No. 143 On Amendments to the Audiovisual Media Services Code
    • This law establishes liability if disinformation or justifications for violence are broadcasted in Moldova. It sanctions broadcasters for spreading disinformation. The law defines disinformation as “the intentional dissemination of false information designed to harm an individual, a social group, an organization or the security of the state.” [16]
  • Australia’s Electoral Amendment Act 2020
    • This repealed law has a section regulating misleading electoral advertising, which prohibits disseminating or authorizing an advertisement containing electoral matter with a statement “purporting to be a statement of fact that is inaccurate and misleading to a material extent.” [17]
  • Cook Islands’ COVID-19 Act 2020
    • This act criminalizes “publishing, disseminating, or communicating harmful information in relation to COVID-19”. Harmful information is defined as information that a person knows or “reasonably ought to have known” as false information about COVID-19, or information intended to promote civil disorder or unrest.[18]

These three laws all have different interpretations of disinformation. The first is intentional dissemination of information designed to cause harm. In contrast, Australia’s definition does not explicitly require intentional dissemination of inaccurate or misleading information and does not require an intent to cause harm. The third law does not require knowledge that the information is false, only that the individual “reasonably ought to have known” it was false. Using the word “or” in the text (information that the individual knows/ought to have known is false or information intended to promote unrest) lowers the burden of proof necessary to charge individuals under this law because the information doesn’t necessarily need to be false. This ambiguity could be exploited in the law’s application, especially as “intent to promote civil disorder or unrest” is vague and up to legal interpretation.

There are even policies more ambiguous than those above, that only use words such as fake news or disinformation without providing any further explanation or guidance as to how those terms are to be interpreted.

In all of these instances, the definitions of fake news, false information, and unreliable information are entirely unspecified and up to judicial discretion. When fines and prison time are levied to discourage individuals from posting illegal content, but the scope of what qualifies as illegal content is never laid out satisfactorily, citizens may become cautious about sharing their opinions or beliefs out of fear that it may be legally interpreted as disinformation to suppress dissent or criticism of the government.

Why Definitions Matter

The absence of a universally agreed-upon definition of disinformation among governments and academic circles leads to uncertainty about what is precisely meant by the term “disinformation.” This ambiguity raises questions about how to determine whether the information is false or the intent behind actors producing or disseminating false information. Uncertainty can then be translated into official policy when legislators draft laws criminalizing or regulating disinformation or fake news without a workable definition. This leaves the law open to inconsistent interpretation and application, or the possibility that it is used as “a pretext to intimidate and harass … or obstruct the legitimate activities of human rights defenders and the media to access and disseminate information”, and creates confusion among the general public as they try to understand how the law will affect them.[22]

The specific terminology and definitions used in policy have been shown to have legal consequences when put into practice. In France, legislators chose to use the term “false information” over “false news” because the latter “had been judicially interpreted to require the transmission of new, not previously published, information” a legal interpretation that may leave out a lot of false information from its scope.[23] In Canada, Section 91(1) of the Canada Elections Act was ruled as infringing on the freedom of expression protected in the Canadian Charter of Rights and Freedom because the word “knowingly” was removed from the text of the code in 2018 to decrease “redundancy” in the text, even though the knowledge qualification was intended to be an implicit requirement.[24] In both of these cases, minute differences in language created vastly different judicial interpretations and applications of law. When terms like disinformation or fake news are employed without definitions in a policy’s text, misapplications of the law may occur, necessitating that courts interpret the vague text. This process can extend from weeks to years; meanwhile, citizens and companies are left in a state of uncertainty while awaiting legal resolution.

When considering disinformation policy, be it comparative research or single country analysis, it’s important to look closely at the terminology utilized and the definitions applied to those terms. In an environment where language is constantly changing and being adapted due to a lack of consensus, individual words and their specific interpretations have significant legal consequences. In this way, the Global Disinformation Policy Database, with over 70 concept definitions, can be extremely useful as a resource where researchers can quickly identify substantive disinformation policies and analyze how definitions vary, affecting the policy’s interpretation and application in practice.

  1. To find more definitions of disinformation that have been proposed by academics, see Fallis, Don. “A Functional Analysis of Disinformation.” (2014)., where the author critiques previous disinformation definitions before proposing their own. ↑

  2. Action Plan against Disinformation (Brussels: European Commission, 2018), 1, https://www.eeas.europa.eu/sites/default/files/action_plan_against_disinformation.pdf. ↑

  3. A Multi-Dimensional Approach to Disinformation: Report of the Independent High Level Group on Fake News and Online Disinformation (Luxembourg: European Commission, 2018), 3, https://doi.org/10.2759/739290. ↑

  4. Claire Wardle and Hossein Derakhshan, Information Disorder: Toward an Interdisciplinary Framework for Research and Policymaking, 5, September 27, 2017, https://rm.coe.int/information-disorder-toward-an-interdisciplinary-framework-for-researc/168076277c. ↑

  5. Action Plan, 1. ↑

  6. A Multi-Dimensional, 3. ↑

  7. Wardle and Derakhshan, Information Disorder, 5. ↑

  8. Irini Katsirea, “‘Fake News’: Reconsidering the Value of Untruthful Expression in the Face of Regulatory Uncertainty,” Journal of Media Law 10, no. 2 (2018), https://doi.org/10.1080/17577632.2019.1573569. ↑

  9. Deen Freelon and Chris Wells, “Disinformation as Political Communication,” Political Communication 37, no. 2 (2020), https://doi.org/10.1080/10584609.2020.1723755. ↑

  10. Katsirea, “‘Fake News,'”. ↑

  11. Oliver Darcy, “Analysis: Biden Calls out Anti-Vax Liars for Promoting ‘Dangerous Misinformation.’ But Don’t Expect Anything to Change,” CNN, last modified December 21, 2021, https://www.cnn.com/2021/12/21/media/biden-misinformation-reliable-sources/index.html. ↑

  12. Laura Kayali, “Macron Goes after Online Platforms, Foreign ‘Propaganda’ Media,” Politico, last modified January 11, 2022, https://www.politico.eu/article/emmanuel-macron-online-platforms-foreign-propaganda-media/. ↑

  13. Tom Phillips, “Brazilians Applaud Lula’s Return to Diplomacy as He Addresses UN General Assembly,” The Guardian, last modified September 19, 2023, https://www.theguardian.com/world/2023/sep/19/lula-da-silva-brazil-un-general-assembly. ↑

  14. Choe Sang-Hun, “President’s War against ‘Fake News’ Raises Alarms in South Korea,” The New York Times, November 10, 2023, https://www.nytimes.com/2023/11/10/world/asia/south-korea-fake-news-disinformation.html. ↑

  15. Ryan J. Foley, “‘Fake News’ Smear Takes Hold among Politicians at All Levels,” PBS, last modified March 11, 2018, https://www.pbs.org/newshour/politics/fake-news-smear-takes-hold-among-politicians-at-all-levels. ↑

  16. “Law No. 143 On Amendments to the Audiovisual Media Services Code” (Republic of Moldova, 2022), 2. ↑

  17. “A2020-51: Electoral Amendment Act 2020” (Australian Capital Territory, 2020), 18. ↑

  18. “COVID-19 Act 2020” (Parliament of the Cook Islands, 2020), 8. ↑

  19. “Decree on the Establishment of the State of Emergency in the Territory of Romania” (Official Gazette of Romania, 2020), 13. ↑

  20. “Law No. 2016/007 of 12 July 2016, Relating to the Penal Code” (Republic of Cameroon, 2016), 42. ↑

  21. “О внесении изменений в статью 153 Федерального закона “Об информации, информационных технологиях и о защите информации””. Federal Law No. 31-FZ of 18 March 2019 (in Russian). State Duma. “Законодательство России. Поиск: Федеральный закон Дата принятия 18.03.2019 Номер начинается”. Archived from the original on 16 March 2022. Retrieved 16 March 2022. ↑

  22. “Freedom of Expression Is Key to Countering Disinformation,” Office of the High Commissioner for Human Rights, last modified November 3, 2022, https://www.ohchr.org/en/stories/2022/11/freedom-expression-key-countering-disinformation. ↑

  23. Rachael Craufurd-Smith, “Fake News, French Law and Democratic Legitimacy: Lessons for the United Kingdom?,” Journal of Media Law 11, no. 1 (2019): 5, https://doi.org/10.1080/17577632.2019.1679424. ↑

  24. Eve Gaumond, “Why a Canadian Law Prohibiting False Statements in the Run-Up to an Election Was Found Unconstitutional,” Lawfare, last modified March 16, 2021, https://www.lawfaremedia.org/article/why-canadian-law-prohibiting-false-statements-run-election-was-found-unconstitutional. ↑