The salient contributions of the following text are the definition of fake news and the comparative analysis of the liability of the social network provider for the unlawful content provided by third person. The preliminary statement of the thesis is that fake news is a “real” social pheonomenon that needs a scientific definition. Fake news in the broader sense (sensu lato) is a false statement of fact, which is knowingly disseminated in a manner, that by the way of its appearance suggests the conveyance of real news of trusted media. The founding element of fake news is that misleads by both – its content and appearance. Fake news in the narrow sense (sensu stricto) is fake news in the broader sense that fulfills the legal elements of one or more pre-existing unlawful acts – the so-called punishable fake news (e.g. defamation, hate speech, false reporting etc.). Liability is understood as a set of duties (compliance rules) the social network provider has towards the unlawful content of its users. Breach of those obligations may result either in civil or criminal liability (intermediary liability).
The further hypothesis is that, in principle, the social network provider has liability only for punishable fake news (sensu stricto), since in the legal orders at stake the unique criminalization of fake news is unknown (sensu lato).US law, with the exception of copyright law, immunizes social networks of any liability. Moreover, the provider may in good faith delete even lawful content (the Good Samaritan clause). EU law and ECHR case-law demand expeditious deletion or removal upon the knowledge of its illegality (»notice-and-take-down«). German law regulates a unique liability scheme, exclusively for social networks. The obviously unlawful content has to be erased or blocked in 24 hours upon the notification, the unlawful content in 7 days.
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