Notes

Most Important topics:

• Self-regulation vs Public Regulation (advantages and drawbacks).
• Code of Practice of 2018, bad decisions of sounding board.
• Free marketplace of ideas (Justice Holmes), difference between US and EU, due to 1^st^ amendment.

The Post-truth Era According to the Oxford Dictionary post-truth is an adjective defined as "relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief". Post-truth was the "World of the Year" 2016.

New Phenomena? Fake news and hate speech are not something new. An old and a recent example of fake news:

• "The Great Moon Hoax" (1835)
• "How Teens in the Balkans Are Duping Trump Supporters with Fake News" (2016)

Characteristics of News online:

• Speedness
• No Point of Return
• Amount of Information
• 24 Hours
• Attention is a Limited Resource

The Digital Realm

• Even if fake news and hate speech contents are not new in the history, their renewed importance is related to the dissemination through a global means of communication: the Internet.
• No scarcity of resources on the Internet.
• But, scarcity of time for users to assess the quality of online contents?

The Role of Algorithms: the Filter Bubble Effect Pariser, personalized searches and filter bubbles: Filter bubble is "a state of intellectual isolation that can result from personalized searches when a website algorithm selectively guesses what information a user would like to see based on information about the user, such as location, past click-behavior and search history". Negative effect on the marketplace of ideas. Sunstein, confirmation bias, polarization. Fake News There is no legal definition of fake news. According to the Cambridge Dictionary, the notion of fake news include "false stories that appear to be news, spread on the internet or using other media, usually created to influence political views or as a joke".

Fake News - Legal Challenges Against this (uncertain) scenario, some claims emerge:

• Criminalizing the publication of fake news (user/publisher-side)
• Criminalizing the spread of fake news (ISP-side)
• Filtering the flow/circulation of fake news (ISP/Third parties-side)
• Criminalizing/Filtering hate speech (user/publisher/ISP-side).

Hate Speech, in search of definition and meaning

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. Illegal hate speech is defined as: "the public incitement to violence or hatred on the basis of certain characteristics, including race, colour, religion, descent and national or ethnic origin".

Three main questions

• Is disinformation/misinformation per se a problem?

What degree of tolerance is offered by the US and European constitutionalism respectively?

• How can fake news be defined?

Where to draw the thin red line between fake news and truth?

• Who should be in charge of removing fake news from the Internet?

Whether disinformation is a problem

• The definition of truth is not always clear
• Some news can be only partially true (fake news?)
• Fake news is not illicit in itself
• Rather, fake news becomes problematic when affects constitutional interests.

Marketplace of ideas The emergence of truth is the result of the public confrontation of different points of view, no matter how offensive, wrong or inadequate they may be (Abrams v. United States, 250 US, 616, 630, 1919*)*: "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out".

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right (Schenck v. United States, 249 U.S. 47, 1919).

Europe - ECHR Two possible ground for limiting the spread of fake news:

• Article 10, para 1: "to receive and impart information and ideas" (right to be informed).
• Article 10, para. 2: three-step test.

Fake news and the Internet How have courts reacted to the rise of the Internet while protecting freedom of expression?

Europe -> Restrictive USA -> Protective

The Marketplace of Ideas

• Milton, truth as a streaming fountain
• Mill, truth as the result of the free market
• Justice Holmes, emergence of truth is the result of the public confrontation of different point of view, no matter how offensive, wrong or inadequate they may be
• A new digital marketplace of ideas,
  • Yes, the Internet offers an unrestricted and borderless space for opinions, ideas ad thoughts to flow.
  • No, the Internet is not a free marketplace.

Defining "Fake News"

• The definition of truth is not always clear
• Some news can be only partially true (fake news?)
• Fake news is not illicit in itself
• Rather, fake news should become relevant for the legal system when the protection of constitutional interests is affected.
• Among fake news, three clusters can be distinguished:
  • False information created ad hoc by actors with significant economic power with deceptive intent (politic propaganda, Trump and Russia).

    Remedy? Transparency

• Information circulating in the Internet that becomes vox populi (the case of vaccines in Italy).

  Remedy? Education

• False information which harms individual and collective interests (discriminator or defamatory statements).

  Remedy? Law

• Does the use of the Internet for circulating fake news trigger the adoption of a different approach and, accordingly, of ad-hoc legal measures?
• Is law the only remedy/ the last resort?

Fact Checking Algorithms and Digital Platforms Is it possible to argue that the use of fact-checking algorithms, which rank content depending on accuracy or nature, makes digital platforms aware of the hosted content? (Responsabilization of platforms does not mean editorial responsibility)

How to deal with fake news and hate speech online? Three possible drawbacks to take into account:

• How to reconcile the regulatory measures against fake news and hate speech content with freedom of expression (collateral censorship).
• How to avoid concentration of power in the hands of (a few) specific authors (see Google Spain).
• How to ensure an effective legal enforcement of remedies online (privatization of the protection of rights).

Public vs Self-Regulatory Solutions Public Regulation

• Germany - NetzDG or "Network Enforcement Act" - June 30, 2017. The Goal was holding social media networks responsible for hosting fake news and hate speech. Social media networks (with more than 2 million registered users in Germany) must remove hateful content or fake news within a 24 hour time frame (if the content is manifestly unlawful). Specifically cites "the experience in the US election campaign" as a reason for a crackdown on "punishable false reports ('fake news')." Punishments consisting in fines up to € 5,000,000 (monetary penalties).
• Italy, proposal for the introduction of criminal penalties through the draft "disposizioni per prevenire la manipolazione dell'informazione online, garantire la trasparenza sul web e incentivare l'alfabetizzazione mediatica" (Disegno di Legge Gambaro).
• Czech Republic, a Government task force called the "Centre Against Terrorism and Hybrid Threats" dedicated to counter "disinformation campaigns related to internet security."
• Singapore, new laws to tackle fake news will be introduced in the next future.

Self-Regulation

• Facebook, hiring 3,000 more moderators to monitor illicit content (private censorship?). Advertisements on how to spot fake news. Cooperation with Fact-Checking providers.
• Twitter, a tool to allow users to flag tweets containing fake news may be introduced

Co-Regulation In 2016 the EU adopted the Code of Conduct on countering illegal online hate speech. The Goal was ensuring that requests to remove content are promptly handled. Participation of NGOs and public bodies from across the EU to provide data on how quickly such illegal content was removed.

2018: EU Code of Practice on Disinformation It was called "the so called code of practice" because it was missing of the essential criteria.

A multi-dimensional approach to disinformation: the HLEG on fake news and online disinformation

• Enhance transparency of online news, involving an adequate and privacy-compliant sharing of data about the systems that enable their circulation online;
• Promote media and information literacy to counter disinformation and help users navigate the digital media environment;
• Develop tools for empowering users and journalists to tackle disinformation and foster a positive engagement with fast-evolving information technologies;
• Safeguard the diversity and sustainability of the European news media ecosystem.
• Promote continue research on the impact of disinformation in Europe to evaluate the measures taken by different actors and constantly adjust the necessary responses.

The threat is disinformation, not "Fake News" "false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit. The risk of harm includes threats to democratic political processes and values, which can specifically target a variety of sectors, such as health, science, education, finance and more". Does not cover issues arising from the creation and dissemination online of illegal content (notably defamation, hate speech, incitement to violence), which are subject to regulatory remedies under EU or national laws. Nor does it cover other forms of deliberate but not misleading distortions of facts such a satire and parody.