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There are legal mechanisms and rights to defend against misinformation in the digital environment.

We often forget that the digital world is as real as the analog one. The consequences of what happens there have a direct impact on our lives, and therefore, neither the supposed “anonymity” provided by a screen nor our presence in the form of 0s and 1s exempts us from the responsibilities arising from our actions in this environment. It is important for internet users to know that there are legal mechanisms and rights to defend themselves in the digital realm, but also that not everything is permissible, and some actions could be prosecuted by law. “It is risky to think that things happen on the internet and you won’t be found,” explains Júlia Bacaria, a lawyer specializing in digital law and CEO of Global Legal Data.

However, while spreading falsehoods or misinformation may be morally or socially reprehensible, the law must determine what type of misinformation is legally prosecutable. Borja Adsuara, a lawyer, consultant, and professor at the Complutense University of Madrid specializing in digital law, explains that for this to happen, it would be necessary to prove that a “harm” has been caused, and in such a case, “first identify which legal good is being affected and second quantify the harm to determine if it constitutes a crime or remains a civil liability.”

Lying, spreading rumors, or sharing false news is not inherently a crime. “Many people want to tie it to Article 20 of the Spanish Constitution, which guarantees the right to receive truthful information,” but according to Adsuara, this is not considered a fundamental right and conflicts with the right to freedom of expression. “And I will always defend the right to lie,” asserts the professor. “So, what’s the problem?” Adsuara explains, “The issue is proving that harm has occurred. If the harm is very serious, it can constitute a crime; if it’s not serious but affects someone specifically, it could result in civil liability and compensation. However, what is prosecuted is not the lie itself—because if it were, prisons would be full of people—but whether the lie caused individual or collective harm, to a client, for example. If such harm exists, the second step is to determine which legal interest has been affected.”

Therefore, while lying is, in some cases, a right, the dissemination of lies can have legal consequences. For instance, impersonating another person, “whether by altering a photograph or pretending to be them, is a crime,” notes Bacaria. If a false photograph of us is published, it could constitute identity theft or a violation of our right to our image, and we could file a complaint “through the data protection channel,” states the lawyer. Additionally, if it involves document forgery or the dissemination of false information about us, Bacaria recommends filing “a formal complaint” to trace the origin of the information. If it is proven to be false, it could result in criminal consequences for the person who spread it.

If false information is spread “that could affect the normal course of daily life, such as an alert about a bomb or an attack, or anything that involves mobilizing the state’s security forces or that, in some way, disrupts society, this also constitutes a crime,” states the lawyer. Publishing and spreading false information about social groups (women, the LGTBQ+ community, immigrants, etc.) is also punishable by law “not only for its falsity but also because it can incite hatred against a specific group of people,” explains Bacaria. “Misinformation is a tool through which fundamental rights can be violated,” Adsuara reminds us.

According to Bacaria, this can also have consequences. “It’s not so much about the first person who spreads it, but the fact that it will spread much further, and therefore, even if you’re not the first to publish it or take the photo, it will still have consequences for you,” she states. “Ignorance that something may constitute a crime does not exempt you from responsibility.” Therefore, to avoid legal consequences, before spreading or publishing information, “you must ensure or have minimally verified that it is true.” However, as Adsuara reminds us, “It’s not the same to spread something you believe to be true as to spread something knowing it’s a lie.”

Regarding false information spread by media outlets, their responsibility is greater, and there are rulings that show that reproducing a lie that has already been published can also have legal issues because “media outlets are obligated to fact-check.” In February 2003, a court in Barcelona condemned the media outlet Micanoa.com and TeleMadrid to pay a 600,000-euro compensation to five FC Barcelona players and to publish a correction for publishing a story claiming that the footballers had attended a party with women at a hotel the night before a match against Rayo Vallecano. “The media that first published that lie was condemned, but also those who echoed it,” explains Adsuara.

Minors are not exempt from legal consequences, which are “adapted to the situation or age” of the minor and also to their surroundings, says Bacaria. “For the minor, the consequences of a criminal offense are adapted; it could range from having to go to a center, being confined at home, or being under supervised freedom… And then, for their family members, there may also be consequences, such as having to pay a penalty,” explains the lawyer. “After all, if you are the victim of this publication, you remain a victim even if the perpetrator is a minor, so in some way, you should also be compensated,” she adds.

In 2020, the Technical Secretariat of the Spanish Public Prosecutor’s Office conducted an analysis of the different crimes that can be committed through the dissemination of false news and determined that, “depending on what they refer to and with what intention they are spread,” they could fall under up to seven different types of crimes: hate crime, discovery and disclosure of secrets, crime against moral integrity, public disorder, defamation and slander, crimes against public health, fraud and professional intrusion, and crimes against the market and consumers.

However, Professor Adsuara argues that, from his perspective, a legal modification would be necessary to expand the list and include cases where misinformation has caused harm in the form of damage to society’s “mental health.” “For example, the rumor about the deaths in the Bonaire parking lot during the DANA crisis in Valencia. That lie caused severe damage to the mental health of society. It cannot go unpunished for people to play with the pain of those with missing persons and of society, which was living with great anxiety at the time. We should consider the legal good that is public health, which includes mental health. Misinformation can cause significant harm to the mental health of a population or a specific group, not just an individual. I am not asking for prison, but if a journalist—a supposed journalist—fails to do what is essential in their profession, which is to verify information, they should be temporarily disqualified from practicing,” defends the legal expert.

Another law recently adapted to the age of misinformation is the one regulating the right to rectification. The Spanish government updated it in December 2024 to also apply to influencers with more than 100,000 followers on a social network or more than 200,000 across all their profiles. In the case of publishing rumors or false information, these accounts will be subject to the same regulations as conventional media. The law also requires social media platforms to provide visible and accessible mechanisms so that complaints can be made directly and followed up on.

In Spain, in November 2022, a Guardia Civil officer became the first person convicted for the dissemination of false news, in this case about migrant minors. The officer was sentenced to fifteen months in prison and a fine of 1,620 euros for posting a tweet with a fake video that falsely attributed a sexual assault to a migrant minor, when in fact, the incident had occurred in China. In 2023, a court in Tortosa convicted a retired woman for a hate crime and discrimination, sentencing her to one year in prison and a fine of 900 euros for posting a video on Twitter in which she falsely claimed to see unaccompanied migrant minors (MENAs) assaulting a teacher. In reality, it was a video filmed in Brazil.

On the other hand, the Spanish justice system is also investigating at least three cases in which minors from Mallorca, Badajoz, and Zaragoza reported the dissemination of pornographic images with their faces, created using artificial intelligence and shared through WhatsApp groups among their classmates. In the Mallorca case, the Guardia Civil interrogated three minors aged between 14 and 16 as the authors of this fraudulent content generated with artificial intelligence, known as deepfakes or ultra-fakes, which is part of gender disinformation.