Introducing: Tackling the “Fake” Without Harming the “News”

This is the first installment of a new white paper series on alternative regulatory responses to misinformation. The articles will be serialized through next week, and presented at a series of events on March 8, 10, and 12th. You can find more information, and registration details for our launch events, here.

Over the past decade, optimism over the Internet’s potential as a force for democratization has given way to a more nuanced understanding of its disruptive impact. The decentralized nature of online discourse, which can circumvent traditional gatekeepers, has led to challenges in promoting integrity and veracity in the civic discourse. The challenges inherent in decentralized communication are compounded by the emergence of new intentionally manipulative technologies.[1] Where internet access was once perceived as a threat to autocrats, it is now also seen as a potential threat to democracy.[2] Over the past five years, governments around the world have become particularly vocal regarding the harms stemming from online misinformation.[3]

The COVID-19 crisis accelerated these concerns, crystalizing the harms flowing from online rumors and lies.[4] In the context of a global pandemic, trust in government institutions is of paramount importance, and false narratives which undermine this confidence, or which otherwise sow confusion about proper safety protocols, are especially dangerous. The pandemic spawned a host of conspiracy theories related to its origins and treatments, which prompted global governments to crack down on the so-called “infodemic”.[5] Throughout 2020, a number of governments either passed new laws criminalizing misinformation or expanded enforcement of their existing misinformation laws.[6]

This legislative trend taps into a long-running debate around the appropriateness of rules restricting the spread of false information.[7] Broadly structured laws prohibiting the publication of “fake news”, “false news”, or “misinformation” have a long provenance as tools for autocrats to target journalists, opposition figures, or anyone else who espouses a narrative which runs counter to official government positions.[8] Around the world, there are numerous examples of “fake news” laws being used to stifle anti-corruption investigations, or reporting which uncovers government incompetence or mismanagement.[9]

One core problem with criminal prohibitions targeting “fake news” is that they grant authorities a broad power to establish and enforce their own centralized version of the truth.[10] While there are other forms of legislation which penalize false speech, particularly defamation, these typically do so in a narrowly circumscribed way, and with robust safeguards to prevent their abuse.[11] In the absence of such protections, laws targeting “fake news” not only lend themselves to abusive applications, but also tend to create a chilling effect against legitimate forms of speech. This impact may be particularly pronounced among journalists who report stories that are rapidly developing, or which are otherwise challenging to verify beyond a shadow of a doubt.[12]

As a consequence, academics and human rights defenders, as well as formal human rights mechanisms, have traditionally adopted a skeptical attitude towards the legitimacy of criminal prohibitions targeting misinformation. In a 2017 Joint Declaration, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access, stressed “that the human right to impart information and ideas is not limited to ‘correct’ statements… and that prohibitions on disinformation may violate international human rights standards”.[13]

Although there is relatively little international jurisprudence specifically assessing the legitimacy of misinformation laws as a class, there have been some adverse findings against particular laws, such as the the Community Court of Justice of the Economic Community of West African States’ 2018 finding against the Gambia, and the East African Court of Justice’s 2019 decision against Tanzania.[14] Likewise, a number of domestic courts have struck down criminal prohibitions targeting misinformation, finding them to be incompatible with the right to freedom of expression.[15]

Despite the inherent human rights risks, since 2018 a number of relatively progressive democracies have passed new restrictions targeting fake news.[16] Germany’s NetzDG has been particularly influential, and has spawned copycat proposals in a number of countries, including Kyrgyzstan, Singapore, Brazil, and Honduras.[17] Canada’s law reforms to criminalize false information in an election context are also noteworthy, insofar as their previous Supreme Court decision striking down a false news law was influential among other courts considering similar questions.[18] The COVID-19 crisis has significantly accelerated the move towards imposing harsh penalties for misinformation.[19] Predictably, COVID-era misinformation laws have been abused to target journalists, opposition figures, and civil society.[20]

While the COVID-19 crisis will eventually abate, changes in our collective consciousness regarding the potential harms flowing from misinformation are likely to be permanent, particularly as they represent the culmination of a longer-term shift in attitudes. It is not uncommon for temporary measures, which have been adopted in times of emergency, to become normalized.[21] However, if the current approach to regulating misinformation, criminalizing false news, becomes a global standard, it would represent a great gift to the world’s authoritarians, validating their efforts to impose a single, State-sanctioned version of the truth.

This is not intended to minimize the very real challenge that misinformation poses, and the importance of integrity and veracity in the civic discourse. However, the human rights harms of criminalizing misinformation suggest that there is a need to think more broadly, and explore innovate regulatory measures which promote integrity in the discourse without adversely impacting the right to freedom of expression.

The purpose of this series is to address that regulatory gap and provide a set of innovative proposals for regulatory responses to misinformation which do not revert to the use of criminal sanctions targeting false speech. The authors were drawn from an open call for proposals which expressly called for novel solutions to the global challenge of misinformation.[22] The winners were selected primarily based on the strength of their abstracts, with a particular focus on creative or under-researched approaches to the problem. However, the organizers also sought to guarantee that a diversity of perspectives would be reflected in the series, given the global and multifaceted nature of the challenge. The authors were given a free hand to develop their ideas. The Wikimedia/Yale Law School Initiative on Intermediaries and Information supported this process by offering multiple rounds of commentary and editorial support to the papers, and by facilitating presentations to the Information Society Project community to solicit further feedback, though final editorial discretion remained with the individual authors.

The first paper, by Nathalie Maréchal, Elizabeth M. Renieris, and Jan Rydzak of Ranking Digital Rights, proposes two changes to the corporate governance framework of social media companies, which support efforts to promote more responsible behaviour among online platforms in mitigating the harmful impacts of the speech they host. The second paper, by Ivar Hartmann of the Insper Learning Institution, proposes increasing the transparency around online funding flows through improved ad libraries. The third paper, by Jonathan Obar of York University, aims to boost information literacy, linking these efforts with existing initiatives aimed at expanding internet access. The fourth paper, by Lisa Macpherson of Public Knowledge, considers the issue through an analogy to environmental pollution, and proposes the creation of a new “superfund” to support fact-checking initiatives, modeled on the Environmental Protection Agency’s Superfund to clean up toxic waste sites. The fifth paper, by Akriti Gaur, proposes a new model of accountable self-regulation for platforms which grants users and civil society groups greater opportunity to meaningfully impact how content decisions around misinformation are set and applied.

Although each of the papers was written with a particular national context in mind, all five were chosen due in part to their potential scalability across different jurisdictions. None of these proposals purports to provide a silver bullet solution to the challenge posed by misinformation. Moreover, all five are ripe subjects for additional research and consideration. Misinformation is an iterative threat which is constantly evolving, including in response to regulatory efforts aimed at combating it. However, while none of these proposals are a panacea, they are also not mutually exclusive. To the contrary, they are designed to be complementary, and to target different aspects of the misinformation ecosystem, in line with the complex and multi-faceted nature of this phenomenon. Together, the papers provide a menu of alternative policy proposals for regulators and public officials seeking new avenues to combat the harm of misinformation.

We hope that this series will provide a useful set of ideas for policy makers, as well as civil society activists who are working to challenge abusive misinformation laws or proposals. Such debates naturally put pressure on opposition voices to offer some alternative vision to the use of the criminal law. It is also our intention for these proposals to serve as a conceptual baseline for researchers, both in academia and in civil society, to develop these ideas further, including potentially adapting them to different national and cultural contexts.

There are no quick and easy solutions to promoting integrity in the public discourse, and no shortcuts to bootstrap democratic institutions. Where countries have been able to establish a strong democratic culture, it has typically come through decades, if not generations, of work to build and enshrine respect for foundational democratic rights, including the right to freedom of expression. The current debate around misinformation is, at its core, a debate about how best to preserve democracy, which is under threat from the evolution of competing and contradictory understandings of reality. However, any solution to the present misinformation crisis which comes at the cost of freedom of expression will be a pyrrhic victory. With this series, we hope to demonstrate that there are avenues to promoting integrity in the public discourse without undermining its vibrancy and diversity.

By Michael Karanicolas, Wikimedia Fellow, Information Society Project - Yale Law School. The author offers his deepest thanks to Abby Lemert, Elizabeth Zietz, Juan Carlos Salamanca Vázquez, Robin Asgari, Artur Pericles Lima Monteiro and Nikolas Guggenberger for their help in finalizing this draft.