How can we defend ourselves legally from the fake news in COVID-19?

An unprecedented situation after COVID-19

What can be done if the company or any of its executives have been affected by false or inaccurate news due to the coronavirus? How can the dissemination of false news affecting corporate reputation be remedied? What measures can be taken in the face of disinformation or false news that hinders the development of organizational or economic activity?

Certainly, during and after this health crisis we are presented with an unknown paradigm in reputation management as well. According to IPSOS market research, the new post-COVID-19 consumer will increase online shopping and video conferencing to connect in the professional and personal sphere. As of mid-March 2020, the main reputation recommendations point to four practical guidelines: 1. first, combat misinformation; 2. understand the risk profile of the company or organization; 3. open and consistent communication; and 4. know what the public and employee expectations are.

In a short time, companies and customers have been immersed in an accelerated process of digital transformation. In situations of confinement and alarm, a speed of adaptation has been difficult to achieve: the flexibility, scalability and security of the cloud allows millions of people to work from home, in a collaborative way, to maintain the continuity of their businesses. Sometimes, major global crises such as the Covid-19 are the ones that produce major changes.

Telework will be one of the first things that companies and public administrations will have to reassess. Before the isolation, remote working seemed to facilitate the reconciliation of work and personal life. Today it is already one of the systems for keeping the activity going in the face of unforeseen events and guaranteeing contingency plans and business continuity. But this, within the framework of disinformation, also exposes the social, business and economic fabric to the danger of anonymity in communications and media attack “from home” or “from outside the organization”.

Paradigm shift: “in the era of immediacy and towards disinformation”

False news and rumors have always existed. However, today, the enormous capacity of social networks to viralize all kinds of content makes them a phenomenon of global dimensions and unstoppable. In the era of immediacy and disintermediation, false or inaccurate but harmful news takes on special importance. Consequently, just like the present health crisis, fake news and its constellation of inaccuracies are on a difficultly-controllable path of propagation that causes confusion and, often, alarm.

The misinformation that is plaguing the world due to an “information crisis” leads companies to take note of the current situation and, in view of the change in paradigm, to take timely action against fake news campaigns that cause irreparable damage to their reputation.

Measures during and after: “communication and legality”

In addition to communication measures to combat rumors and fake news, from a clear pre-crisis plan, to the management of social networks and brand presence in the digital ecosystem, the management of analog and digital corporate reputation includes the adoption of measures and legal actions.

In the current post-COVID-19 scenario, it is foreseeable that individuals or companies will become involved in legal proceedings, as well as the appearance of critical moments due to the consequences of court decisions (it is enough to think of liability claims, imputation of criminal acts by action and omission, as well as the responsibility of managers in a collapsed ERTES labor environment and other business measures adopted).

The areas of exercise of legal actions to combat disinformation, especially when it is damagingly false or misleading, include various possibilities, with communication, economic and reputational impact:

  • Privacy and use of digital devices in the workplace.
  • Digital switch-off in the workplace.
  • Digital will.
  • Rectification on the Internet.
  • Updating of information in digital media.
  • Oblivion in social network services and equivalent services.

These actions can be exercised in multitude scenarios:

  • Communication of the affected person’s crisis, to coordinate the common strategy of reputation (legal and communication).
  • Business growth strategies.
  • Recovery of damaged reputation.
  • Monitoring of news, including social networks, and assessment, also legal, of the evolution of the corporate image.
  • Protection of reputation at different judicial moments (investigation, out-of-court settlement, hearing, trial, sentence, appeal, etc.), as well as accompaniment to hearings, trials and other legal proceedings.
  • Protection of reputation in the face of labor, health, data protection or data theft conflicts, tax fraud, criminal, civil or administrative proceedings or consumer and user complaints, currently particularly from patients.

The legal actions can be exercised in an advised way and with the opportune, and often necessary, communicative accompaniment before, during and after its exercise extrajudicial and judicial.

Right of rectification on the Internet

Contained in article 85 of the current Spanish Organic Law on the Protection of Personal Data and the Guarantee of Digital Rights (LOPDGDD), this right guarantees everyone freedom of expression on the Internet. It is articulated as follows:

  • What you are entitled to: to rectify the information disseminated, by any means of social communication, including digital ones, of facts that refer to a person or entity, which you consider inaccurate and whose disclosure may cause you harm.
  • Who is entitled: any natural or legal person.
  • Before whom it is exercised: any person responsible for social networks and equivalent services.
  • Who is “responsible”: “information society services”, provided that they represent an economic activity, including those defined in Law 34/2002 of 11 July: “any service normally provided for a fee, at a distance, by electronic means and at the individual request of the recipient”. For example, all those of sending commercial communications and providing information by telematic means.
  • What can be required: the rectification of contents that violate the right to honor, personal and family privacy on the Internet and the right to freely communicate or receive truthful information.
  • What requirements must be met: those provided for in Organic Law 2/1984, of 26 March, regulating the right to rectify: inaccurate and damaging facts, writing to the director of the medium, specifying the facts of the information to be rectified, the director of the medium must publish or disseminate the rectification in full within three days of its receipt, etc.
  • How the right is dealt with: The media must publish in their digital archives a notice of explanation that shows that the original news does not reflect the individual’s current situation.
  • How the law is enforced: the notice should be posted in a visible place along with the original information.
  • What interest it has in practice: it allows the informative contrast and can become a useful means for the rest of reputational communicative actions.

Right to update information in digital media

This new right, regulated in article 86 LOPDGDD, is specified in the following framework:

  • Who is entitled: all natural and legal persons.
  • What you are entitled to: Request an update notice in the digital media.
  • In which cases it applies: in two main cases:
    • 1. when the information contained in the original news does not reflect the current situation as a result of circumstances that occurred after publication, causing injury to the affected person; and
    • 2. where the original information relates to police or judicial action taken by the data subject for the benefit of the data subject as a result of subsequent judicial decisions. In this case, the notice shall refer to the subsequent decision.
  • Before whom it is exercised: any digital media, including social networks and equivalent services.
  • How to request it: with reasons, by providing a brief summary of the factual circumstances, including any hyperlinks to the original information.
  • How the right is dealt with: by including a sufficiently visible notice of update next to the news concerning the injured party. The lawyer in charge of the exercise of the right must ensure that this adequate inclusion is effectively complied with.
  • How it is complied with on the websites: the notice of update should appear in a visible place next to the news concerning the injured party. The relocation of information to secondary or non-accessible areas should be avoided.
  • What is the interest in practice: it allows the informative update, essential for the reputational communicative actions.

Right to forget in social network services and equivalent services

This important right contemplated for the first time in Spain in article 94 LOPDGDD should be exercised, as in the previous ones, with the appropriate specialized legal assistance, due to the foreseeable legal actions to be undertaken if proper attention is not achieved.

It is specified as follows:

  • Who is entitled: any natural person; it is not clear whether it can apply to legal persons Also the adult in respect of data published during his or her minority by third parties.
  • What you are entitled to: to request the deletion of your personal data when they are inadequate, inaccurate, not relevant, not updated or excessive or have become so over time.
  • What additional factors should be taken into account: the purposes for which the personal data were collected or processed, the time elapsed and the nature and public interest of the information.
  • In which cases does it apply: in three different situations: 1) when the data have been provided by the data subject or 2) when they have been provided by third parties for publication by social network services and equivalent information society services; and 3) when the personal circumstances of the data subject show the prevalence of his/her rights over the maintenance of the data by the service.
  • Before whom it is exercised: before any social network services and equivalent information society services.
  • How it should be requested: And data provided by individuals in the exercise of personal or domestic activities are excluded.
  • How the right is attended to: by means of the deletion of personal data.
  • What is the interest in practice: it allows the informative update, essential for the reputational communicative actions.

In conclusion, legal actions exercised with legal assistance facilitate the reputational management of individuals, managers and companies, especially for the best development of communication strategies in pre-crisis and, where appropriate, crisis situations.

Efrén Díaz Díaz

Lawyer, Doctor of Law. Responsible for the Areas of Technology and Space Law in Bufete Mas y Calvet.