ABSTRACT
Misinformation is untruthful information which is intentionally spread to manipulate. Case studies of some recent judicial remedy procedures linked to referenda campaigns in several European countries have shown that it is generally possible to challenge misinformation deriving from public authorities. This model of judicial remedies is consistent with the ECHR. The Venice Commission’s guidelines go further, establishing the duty of objective information through public authorities and the availability of judicial review in the field of referenda. In any case, judicial remedies challenging misinformation in the context of referenda are always based on the constellation of “citizens versus state authorities”. The new regulatory approaches, both on a European and on a national level, now focus on misinformation by private actors. The ability of courts to enjoin private persons from diffusing untruthful information restricts the freedom of expression. Thus, serious doubts arise as to whether this approach is compatible with freedom of expression. In any case, more emphasis should be placed on the meaning of freedom of expression for a democratic society.
