Introduction
If conservative political pundits are to be believed, “fake news” is a new social media-based phenomenon that threatens our global democracies. Chief among such proponents is current US President Donald Trump, who even claims to have coined the term. While this evidently goes a step too far—whether misrepresenting the turnout for his January 2017 inauguration, or his disputed involvement in the storming of Congress in 2021—the President’s prodigious social media use (particularly on Twitter, and later Truth Social) has prompted intense political and media polarisation. Following selection of “postfaktisch” (i.e. post-truth) as Germany’s 2016 Word of the Year, Trump’s undeniably influential role in popularising the term “fake news” was recognised by Collins Dictionary, which named it the 2017 Word of the Year. Since then, legal scholars have written on its every conceivable aspect, including settling upon a standardized definition, exploring its implications for free speech and democracy, and clarifying its role in broader epistemic crises.
But not only have these phenomena not originated in recent years, it is worth recalling that a global collision course with “post-truth” and “fake news” was foreseen in the immediate aftermath of the Second World War. A “handbook for difficult times,” George Orwell’s seminal novel and cautionary tale 1984 imagined a distorted reality with blurred lines between “truth” and “falsity,” which painted an unending and bleak dystopian picture where “[e]very record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered.” The upshot for humanity should be as disturbing now as it was in 1949, namely: “History has stopped. Nothing exists except an endless present […].” The main implication of such a grim reality—where citizens lack both the ability and motivation to distinguish between truth and fabrication—is the death of civic engagement and its replacement with growing somnolescence and political apathy. As a reminder of what might yet await us, Orwell’s literary warnings about the toxic combination of government censorship and historical negationism remain of immense value, raising “similarities [that] are nearly as endless as the words of the book.” But rather than overstate their present-day relevance, we aim to simply remind the reader of fake news’ deep historical roots—a modest effort (in Orwellian terms) to “end the endless present” or “restart the past” through a more comprehensive chronicling of this ageless and protean phenomenon.
Fake News in a “Post-Truth” Era
It is widely believed that we are in the midst of a technologically-driven “epistemic crisis” that threatens humanity’s understanding of “truth” and compromises the health of its global discourse. As we all know, the Internet and social media have triggered a tectonic shift in our digital media ecology. Despite the impact of its three defining features of technological and corporate media convergence, participatory social media culture, and a growing “crisis of institutions”—each of which contributes its own epistemic concerns—perhaps the most worrying characteristic is the progressive intensionalisation of our public sphere. The term “intensionalisation” refers to an intellectual orientation towards progressively higher levels of conceptual abstraction directed away from the non-verbal realm of empirical phenomena. As used by the Polish mathematician and engineer Alfred Korzybski, an “intensional” orientation involves reversing the natural order of abstraction vital to the scientific method, with correspondingly harmful effects on human evaluation and our overall psychological and socio-political well-being.
A recent and highly-instructive example of this intensional orientation is the decades-long development and ever intensifying funding of Metaverse, which is a frontrunner in the ultra-competitive global race to design and implement a successor to the Internet. Intended to build upon and iteratively transform the Internet—not replace it—Metaverse has been aptly described as:
“[…] a massively scaled and interoperable network of real-time rendered 3D virtual worlds which can be experienced synchronously […] by an effectively unlimited number of users with an individual sense of presence, and with continuity of data, such as identity, history, entitlements, objects, communications, and payments.”
Along with emerging Web3 technologies (e.g. blockchain, cryptocurrencies, etc.), Metaverse has its own fully-functioning economy and is expected to generate significantly more revenue than the Web. By designing and perfecting an ever-expanding proxy world—a fully immersive and entirely human-engineered “virtual reality”—Orwellian parallels to perceptual engineering and regulatory capture are not hard to imagine.
Given this dynamic digital media landscape, it is no wonder that there is no universally accepted definition of “fake news.” Still, its modern proliferation raises regulatory concerns with balancing free speech against the shared epistemic needs for healthy democratic discourse. Despite a growing contingent of “solutions”, and an initial confidence that our legal systems “have the tools” to regulate it effectively, scholars have questioned whether fake news is the “real” problem or is, instead, merely a symptom of a larger challenge plaguing today’s media environment. Whether considering analogue or digital mass media eras, fake news may simply be (and perhaps always was) the “tip of a vast informational iceberg,” an overt symptom of a more multidimensional problem—a contention worth exploring by taking a closer look at its prolonged and geographically-varied history.
Origins of Fake News
Contrary to President Trump’s characteristically bold assertions, “fake news” is not only not new, but is not necessarily linked to modern communications technology. Dating back to at least Roman times, history is rife with examples of fake news—only the ways and means of disseminating them would appear to have changed.
Antiquity and Medieval England
Many will recall the Roman Praefect Pontius Pilate’s challenge: “Quid est veritas?”—an ageless question that sets an apt historical and philosophical tone by not only presenting an early example of uncertainty over the substantive, qualitative, or relational nature of “truth,” but for situating the start of our brief chronicling of fake news. In fact, one of the earliest and most infamous Roman examples involves Procopius of Caesarea, a sixth century Byzantine scholar and historian, who in his controversial manuscript Secret History published dubious information—known as Anecdota—to smear the reputation of Emperor Justinian. Though unpublished during his own lifetime, Procopius portrayed the Emperor as cruel, venal, prodigal, and incompetent, even claiming that he was spiritually possessed or was himself a demon. Even in antiquity, the political advantages (and associated costs) of obscuring “truth” appear to have been only too well known.
Conservative political pundits might also be surprised to learn that one of the first statutes regulating fake news was passed during England’s early medieval history. After the signing of Magna Carta in 1215, the English Parliament passed the Statute of Westminster of 1275 (3 Edw. I), which created the offence of De Scandalis Magnatum that read (in relevant parts):
“Forasmuch as there have been aforetimes found in the country devisers of tales, whereby discord or occasion of discord hath arisen between the king and his people or great men of this realm, it is commanded that none be so hardy as to tell or publish any false news or tales […]; he that doth so shall be taken and kept in prison until he hath brought him into the court which was first author of the tale.”
While ordinary English citizens might seek remedies in the seignorial and ecclesiastical courts, a limited aristocracy could plead De Scandalis Magnatum before the infamous Star Chamber which––reinforced by the King’s prerogative and not bound by the common law––is reported to have construed the Statute of Westminster with “generous comprehensiveness.”
United States
The US similarly has a long history of fake news. Beginning with the 1800 Presidential election—a partisan and nasty campaign fought in the wake of America’s brief restoration of the crime of seditious libel under the Alien and Sedition Act of 1798—it is reported that “Federalist newspapers tried to keep people from voting for Thomas Jefferson by running fake stories of his death.” Outside of such duplicitous political manoeuvring, in 1835, The Sun (a New York based newspaper) published several articles about life on the moon, accompanied by drawings of humanoid bat-creatures and bearded blue unicorns presumably discovered by English polymath and astronomer Sir John Herschel. Likewise, in 1874, the New York Herald reported that “animals had broken out of the Central Park Zoo, rampaged through Manhattan, and killed dozens.” Despite the article indicating that the “entire story given above is pure fabrication,” many New Yorkers attempted to flee the city. Even more chaos was generated by Orson Welles’ notorious War of the Worlds CBS radio broadcast in 1938, complete with fake news bulletins interrupting regularly scheduled programs to report on a Martian alien invasion. Welles’ autobiography reports in dramatic style that the public response was “flabbergasting […] [h]ouses were emptying, churches were filling up; from Nashville to Minneapolis there was wailing in the street and the rending of garments.”
Europe
Europe is also no stranger to “fake news.” Closer to home and a remarkable example of political scheming, the so-called “Ems dispatch”—an internal telegram from the Prussian King Wilhelm I to the then Prussian Prime Minister Otto von Bismarck—had been surreptitiously altered by Bismarck with the clear intent of inciting France to declare the Franco-Prussian war in 1870. Another master manipulator was Soviet Union leader Josef Stalin, who is known to have ordered the removal of disgraced revolutionaries from original photographs. One of the most famous examples shows Wladimir Lenin on a grandstand in Moscow without Trotsky standing next to him, who Stalin had simply erased from the retouched 1919 photo. Finally, in an early attempt to regulate fake news, the original 19 members of the League of Nations agreed in 1936 to a multilateral undertaking to regulate peacetime propaganda called the “Convention Concerning the Use of Broadcasting in the Cause of Peace.” This Convention sought to regulate Germany and the Soviet Union’s pervasive (mis)use of the new mass medium of radio broadcasting by spreading aggressive political propaganda before and during World War II. Even in the world’s first electronic mass media era—already a century ago—such international agreements attest to growing awareness of the acute and rising dangers of disinformation and fake news.
Conclusion
As shown from our brief chronicling of its past, “fake news” is anything but new and certainly not restricted to modern communications technology. Still, this point can be easily overstated. While it is certainly true that newspapers and history books have always been coloured and biased, falsification of the kind practiced today would have been impossible absent radical technological innovations that continue redefining our digital media ecosystem. From advances in AI (e.g. ChatGPT) and quantum computing, to the looming prospect of Metaverse, it is these quantum leaps in our digital infrastructure that turn dystopian phantasies into an all-too-vivid reality. As captured by such prosaic Orwellian statements as “[d]ay by day and almost minute by minute the past was brought up to date,” it is the vulnerability to manipulation of the Internet’s evolving technology stack that embodies Orwell’s dire warnings of perceptual engineering and forced conformity. Given the rising phenomenon of “link rot” (i.e. hyperlinks ceasing to work), and the possibility of removing any information that conflicts with officially-sanctioned content, it is not inconceivable that we could one day find ourselves in a similar predicament where “[a]ll history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary.” Perhaps we are here already.
Equally important as clarifying fake news’ historical roots and links to social media is appreciating its regulatory pitfalls. Recognising that disinformation and “fake news” have serious consequences for democracy, national security, public health, and individual rights, many prominent jurists—most notably US Supreme Court Justices Clarence Thomas and Neil Gorsuch—are increasingly probing the relationship among longstanding free speech laws and limiting false statements of fact in today’s digital media environment. Regrettably, some commentators have likened the spread of fake news to a virus, claiming that it “wreaks havoc on the health of our institutions and norms.” Good intentions aside, this metaphorical overlay of communicable disease and panic is unfortunate. Given that the main drivers of fake news are being exposed as non-legal in nature—consisting of political polarisation, economic motives (i.e. click-through advertising), declining public faith in traditional media, and digital media illiteracy—regulatory proposals aimed at rolling back media protections risk not only misunderstanding its “root causes,” but collapsing the breathing space necessary for healthy public debate (e.g. respecting political and scientific dissent) and holding power to account.
In the end, the stakes are high and simple solutions to complex problems should not be expected. After all, in less than one generation, humanity appears to have rewritten nature’s code—effectively replacing nucleotides with ones and zeros. This not only prompts new legal difficulties and law reform proposals, but an Orwellian scenario where—as legal scholars and media historians have recognised—technology may soon subvert the most fundamental workings of human cognition and behaviour. As in our networked media landscape, perhaps the greatest horror in Orwell’s dystopian surveillance state is centrally controlling the meaning of our language and narratives, thereby impeding our perception and understanding of the real world.
Johanna Rinceanu
Dr. Johanna Rinceanu, LL.M. (Washington, D.C.) is a Senior Researcher at the Max Planck Institute for the Study of Crime, Security and Law, Department of Criminal Law, in Freiburg, Germany. Her research interests include criminal procedure, comparative law, human rights law, and digital media regulation.
Randall Stephenson
Dr. Randall Stephenson, LL.M. (Columbia), M.St., D.Phil. (Oxon) is a Senior Researcher at the Max Planck Institute for the Study of Crime, Security and Law, Department of Public Law, in Freiburg, Germany. His systems-inspired research investigates the epistemological and doctrinal implications of process-relational principles for public libel law, intelligence studies (oversight), and digital media regulation.
