Legal and Regulatory Approaches to ‘Fake News’

The next session at this iCS Symposium starts with Irini Katsirea, who continues with our ‘fake news’ theme. There are a great many definitions for this problematic term, and it is usually better to distinguish between several more specific types of mis- or disinformation, and indeed a U.K. House of Commons committee recently recommended abandoning the term altogether.

One submission to the committee defined ‘fake news’ as knowing and consistent publication of predominantly false information in the guise of news, yet what is missing here is an acknowledgment that this is done with the specific intent to mislead; otherwise, openly fake satirical content would also fall under the definition of ‘fake news’.

Given the importance of social media to the dissemination of such content, this deliberately misleading ‘fake news’ has the capacity to influence public debate, and potentially even challenges democracy. However, there is also a moral panic here: the effect of ‘fake news’ is often short-lived, and there may be a confirmation bias in self-reported encounters with ‘fake news’ here.

Overall, then, there remains considerable regulatory uncertainty about what is to be done about ‘fake news’. From a European perspective, the European Court of Human Rights has ruled that even untruthful information may be protected by freedom of expression laws; however, there are limits to such protections for instance for content that denies the historical fact of the holocaust – yet the ECHR has not ruled similarly in the case of speeches denying the Armenian genocide committed by the Turkish state.

Alternatively, ‘fake news’ – especially if it serves as clickbait – may be regulated as commercial speech, which is protected to a considerably lesser extent, or as paid political advertising; such alternative categorisations have not yet been tested in legal rulings.

In specific country jurisdictions, such as Germany’s, there are clearer distinctions between expressions of fact and opinion; Germany has also passed the Netzwerkdurchsetzungsgesetz that applies to large social media companies and requires them to swiftly take down content that is obviously in breach of a pre-existing criminal law. In the U.K., there is some case law that protects even untruthful expression. In the U.S., freedom of expression is enshrined by the First Amendment and generally also protects untruthful expression, but not when a cognisable harm is associated with the falsehood. Notably this does not necessarily extend to false statements about political opponents that are made during election campaigns.

There is a still considerable way to go in the legal approach to ‘fake news’, then. Whatever laws or regulations are introduced, too, there is a significant need to consider the potential ancillary consequences.