Recently, Facebook has been blamed for spreading “fake news” and contributing to the election of Donald Trump as the next US president. There have since been calls for Facebook to take action to address the issue and be treated as a media company in this regard. While tech giants hold considerable power over media and civic space, assigning them the mission of sorting out what constitutes “true” information is a dangerous route to take. What’s more, in the complex world we live in, even journalists and other contributors to the news should never be held liable for reporting “fake news” unless they have failed to dedicate reasonable efforts to verify information.
Reactions to the recent US presidential elections or the Brexit referendum are dominated by a sense that facts and rational debate have lost relevance in politics and public discourse. Lies seem to have become the decisive factor in today’s electoral contests. In an effort to preserve whatever is left from the democratic model of society, influential voices have called for a resolute battle to be fought against the viral spread of “fake” stories that infect populations with “dangerous” opinions. However, from the perspective of international law on freedom of expression, the issue of “fake news” must be approached with caution, mindful that prohibition of “fake” or “false” news has often served as an instrument to control the media and restrict editorial freedom.
The real problem with “fake news”
There’s no denying that misinformation exists. Unscrupulous businesses will publish deceitful reports to attract advertising income – to a lesser degree, this is also a preoccupation for certain media outlets that rely on sensationalist headlines. Others might publish lies to influence audiences in the pursuit of other political or economic objectives. In certain circumstances, however, the publication of deceitful information can cause serious harm. It could damage an individual’s reputation, violate their privacy or trigger disastrous collective reactions.
Nonetheless, restrictions on “fake news” are not the appropriate way to deal with these consequences. Existing laws on defamation, legal provisions that protect the right to privacy, and laws on public order that allow police forces to control the possible consequences of public outrage already provide some protection from negative impacts. All of these laws, of course, must respect the requirements of international standards on freedom of expression: in short, they need to be written with clarity to allow individuals to foresee the consequences of their actions, and they must be proportionate to the ill that they seek to counter. Even less restrictive of freedom of expression, the detailed prescriptions of professional ethics and mechanisms of self-regulation such as press councils also serve to encourage media and journalists to publish reliable and accurate information.
By contrast with finely-tailored legislation, any legal prohibition of “fake” news would inevitably create a chilling effect upon the media and anyone that contributes to public debate. Facts are by their nature complex and intricate, to the point that it is truly impossible to avoid slight inaccuracies in reporting. Demanding that journalists only publish reports that are absolutely true would simply be impractical. International case law has indeed recognised that journalists contributing to public debates on topics of general interest have the right to a certain degree of exaggeration or even provocation.
Enacting a legal duty of truth would provide public authorities with a powerful instrument to control journalistic activities: allowing public officials to decide what counts as truth is tantamount to accepting that the forces in power have a right to silence critical voices. Journalists or human rights defenders could be sent to prison on accusations of disseminating untrue statements about alleged wrongdoings by the government. Activists that use purposely misleading information to raise awareness through provocative stunts, such as the Yes Men, or satirical publications, such as The Onion or The New Yorker’s Borowitz Report, would be destined to a similar fate.
Like ‘hate speech’ or ‘terrorism’, the notion of “fake news” is too vague to prevent subjective and arbitrary interpretation. It would not be much reassurance to have private entities like Facebook making these assessments instead of public authorities – not to mention that these businesses may be subject to the influence of non-democratic governments in certain countries where they operate.
Social media and the news
Even if self-regulation and proportionate legislation might be sufficient to deal with cases of false information in the media, isn’t it true that social media platforms create echo chambers that can amplify the noise of fake news to unprecedented volumes? People who use online platforms as their main sources of news are surrounded by stories and rumours disseminated by others who share similar views to them. They lose contact with the vast diversity of opinions and ideas that exist in our complex societies, and they may even lose touch with good old-fashioned, factual reality.
One might first observe that the traditional media sphere has in itself always served as an echo chamber, as mainstream media companies routinely focus on the same few stories of the day. One might also note that the digital age has rendered the verification of facts easier than it ever was: manipulation of digital material can be investigated, and the Internet provides the infrastructure for checking sources and facts. Websites like Snopes or Hoaxbuster even specialise in debunking rumours. One must also acknowledge that social media platforms are incredibly efficient enablers of the individual right to freedom of expression.
But as J. Simon recently wrote in the Columbia Journalism Review: ‘Of course, there are many, many benefits to our current media environment. There is more news and information available more easily than at any time in human history. But there are downsides as well. Not only is it impossible to analyse and process the information, but trying to do so produces collective stress. Scientists studying human behaviour artificially create high-stress situations by bombarding their subjects with information. This environment is now replicated in our daily lives.’
Various ideas are being put forward to address social media platforms’ power over the visibility of media content and their influence on public debates. Tech giants are looking into new ways to verify information: relying on third-party organisations to identify “fake news” and refusing to serve advertising revenue to sources of misinformation. Influential media scholars also encourage social media companies to hire editors, not to produce media content, but, in the words of Jeff Jarvis, ‘to bring a sense of public responsibility to their companies and products.’
These proposals are certainly worthy of consideration, but times of uncertainty require caution: any attempt to deal with the influence of social media on the distribution of information and on public debates should be approached as a learning process for all parties involved. As discussed in our previous blog, this learning process is essential for democratic societies. As a collective experience, these initiatives should be open, participatory and transparent. All stakeholders – media companies, journalists, civil society, academia, and social media giants – should collaborate on projects to build a better understanding of how to address the impact of social media giants on civic space, media pluralism and the diversity of content. Discussions must also focus on the development of appropriate remedies, including solutions to flawed algorithmic processes, to help audiences to spot possible misinformation and ensure users’ exposure to a real diversity of opinions and ideas.
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