Responding to the Disinformation Dilemma
A Policy Prospectus of Legal Responses to Disinformation
PUBLISHED: MARCH 2021
“This claim of election fraud is disputed and this Tweet can’t be replied to, Retweeted or liked.”
This message was added to a series of tweets by Donald Trump on Twitter before his account was suspended following the January 6th storming of the United States Capitol by his supporters. This response, made in real-time to prevent amplification of a misleading message, is an example of how Twitter tackles disinformation on its platform.
While disinformation is not a new problem, the digital age has created new threats. Emerging technologies have enabled individuals and groups to spread messages faster and to a wider audience than ever before. Social media platforms and internet companies cannot be relied upon to curb disinformation. Their business models thrive on increasing user engagement with exciting content, with the aim of collecting massive amounts of user data. This data is then used to power algorithms and generate profits, creating a perfect ecosystem for disinformation.
Governments are now trying to address the problem. They often do so by introducing vaguely defined concepts of ‘false information’ and by setting strict deadlines for the removal of such ‘false’ content. However, many of these new laws and regulations do little to solve the issue, while essentially giving governments legal cover to suppress and punish speech they do not like.
ICNL’s Legal Responses to Disinformation – a Policy Prospectus examines legal and regulatory measures that can address the evolving challenges of disinformation while protecting the freedom of expression.
PROBLEMATIC RESPONSES TO DISINFORMATION
“Anti-Fake News” laws
These laws seek to directly counteract disinformation with prohibitions on the dissemination of information based on vague and ambiguous concepts, including “false information,” and provide authorities with broad powers to act as “arbiters of truth,” in violation of Article 19 of the ICCPR. These laws do little to effectively address the problem and give governments the ability to restrict legitimate speech.
Laws or penal codes addressing this issue often contain provisions criminalizing categories of speech online, including disinformation, but again do so with overly broad and vague language. Such laws and provisions do not comply with Article 19 of the ICCPR and impermissibly restrict freedom of expression.
The pandemic has exacerbated this trend. Many governments have implemented emergency measures that impose heavy penalties or long jail sentences for spreading “false information” or “rumors” about COVID-19, while lacking sufficient safeguards to protect freedom of speech.
PRINCIPLES FOR APPROPRIATE REGULATION OF DISINFORMATION
Government regulation is needed to limit the spread of disinformation, misinformation, and mal-information (these terms are defined and explored in the Prospectus). Social media platforms and other internet companies have not previously acted, and are unlikely to act, in the interests of the public without legal regulations. However, regulating disinformation should not allow governments to be the ‘arbiters of truth.’ Individuals should be able to access true and false information and then assess the validity of that information.
Regulation must comply with international norms relating to the freedom of expression and right to privacy. Restrictions on expression are only permissible when they are provided by law and necessary in a democratic society in furtherance of legitimate government aims.
LEGAL AND REGULATORY RESPONSES TO DISINFORMATION
Our prospectus aims to present regulatory responses to disinformation, and provides information and analysis concerning available measures to combat its spread and amplification. It explores three categories of legal measures that may be available:
- existing laws, which, while not designed to combat disinformation, may nonetheless address the problem in part;
- laws targeting disinformation; and
- new legal or regulatory approaches that provide innovative solutions to the problem.
Our goal is to provide the necessary information policymakers and civil society actors need to advance regulatory responses that will limit disinformation while fully respecting and protecting freedom of expression.