by Rui Vieira, master's student in EU law at University of Minho

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The epidemic of unrestrained fake News on social medial in the latest years has revealed itself to be a major concern for the European democratic culture. The same way there is a massive amount of information circulating, there is also a massive amount of misinformation and sensationalistic, unreliable information flowing through Social Networks. The repercussions and negative effects on public opinion are varied. From social tension to the promotion of demagogy, uncertainty and pessimistic skepticism on the public opinion.

Facing such global-scaled problems, the Commission wants its citizens to feedback on fake news and online disinformation. A Public consultation on the ways to tackle this online problem is available between November and February.

The demand for possible regulation for this problem came after a 2017 Resolution by the European Parliament calling on the Commission to analyse in depth the current situation and legal framework with regards to fake news and to verify the possibility of legislative intervention.

In fact, the advent of Social Networks did nothing more than to increase older concerns. In the last century, it was already discussed if there is a conceptual distance between news and the truth and if a democratic public opinion is compatible with a free press and the search for the truth[i].

However, despite the concerns regarding the effects of fake news and their consequences, the battle against it can also reveal many problems.

Starting with the public itself, most people tend to have a different self-identity offline and self-identity online and there are many different online social spheres and identitary interactions based on the self-representation on online plataforms[ii]. Fake information is easy to disseminate when people are only showing a fake representation of themselves. It is also worth mentioning that most fake news is a form of massive-spread expression, by the part of endless networks of communication and interactions.

Amidst this context, freedom of expression and information is also a fundamental right which is protected by the European Charter of Fundamental Rights in Article 1. Article 11(2) specifically protects the freedom and pluralism of the media.

The Court of Justice of the European Union even noted the importance of the role of internet regarding this Article on the paragraph 45 of the GS Media BV v Sanoma Media Netherlands BV and Others case. Furthermore, the importance of a free internet was also noted by the United Nations on its Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, Frank La Rue. A democratic and free internet has also revealed itself to be essential for social and economic development[iii].

Clearly, a censoring policy is, therefore, in breach of the EU principles. The problems presented by the overflow of fake information, in any case, have shown themselves as being a challenge, considering the uncertainty regarding its root causes.

On the other hand, the citizens, being the target group, emerge as the main weapon on the need to tackle misinformation. It’s necessary to empower the citizens with skills and competences to battle fake news.

European citizens, as well as other citizens, are also part of communities inside their social platforms and online social platforms are forming self-governing policies of their own with the feedback of their users[iv]. Some moderated regulations are necessary to promote the reasonable search for Truth in such a complex environment.

However caution is the key concerning regulations and state controls. A proper and democratic coordination and commitment by the EU can be achieved with cooperation policies like the case of the European Code of Conduct for Countering Illegal Hate Speech Online. Moderated policies like these should develop in a way the citizen displays an active and dynamic role in Social Networks and their interactions with an endless variety of sources of communication and information.

Other prudent methods is the development of some adequate and reasonable tools to filter (without censoring) information. Fact checkers have been a rising tendency and can work as a democratic institution despite their uneasy relation with the existing media and some scepticism surrounding it by the part of the public.

Nevertheless, despite all the support that can be given by the States, it should also be considered that overreactions and sensationalism are also a constant with the public, especially considering new means of communication and information and that different means of communication tend to clash, rival and compete with each other.

The famous 1938 War of the Worlds broadcast by Orson Welles is an example of public overreaction and how the interaction with new means of communication of citizens and other means of communication can lead to some overreactions by the public that is dealing first hand with new means of communication and a consequent dramatization by the local press and media.

After the famous mass-hysteria caused by the radio broadcast of War of the Worlds, by Orson Welles, in the last century, a supposed mass-hysteria was caused by people thinking the broadcast was true, newspapers pressured for some regulations on radio broadcasts. Yet Welles was never sanctioned and most of the hysteria was heavily dramatized by newspapers that were competing against radio broadcasts.

In any case, heading to a possible 21st century online Marketplace of information, rising on Social Networks and new forms of communication, it could be said that the Truth might emerge from its competition with falsehood, albeit the technologies showing new complexities and hardships. However, the search for information and the Truth is always dependent on a community and its citizens.

Therefore, the promotion of education, skills, competences and the development of a broader critical thinking on the common citizens are necessary. An effective and reliable promotion of the spreading of exact, transparent and accessible means of information should also be stimulated. The search for truth and certainty is unattainable without a proper link to its citizens and their issues by the part of the European Union. In this sense, it is undeniable that censoring policies are against the European Union’s fundamental core and the most democratic approach being done by the commission is to empower its citizens in the battle against fake news and the spread of misinformation.

[i] See Sam Lebovic, Free Speech and Unfree News: The paradox of Press Freedom in America (Harvard: Harvard University Press, 2016) 25-31.

[ii] Zizi Pacharissi, “A Networked Self”, In A Networked Self: Identity, Community and Culture on Social Network Sites, ed. Zizi Pacharissi (Routledge: New York, 2011) 304-312.

[iii] See Giampiero Giacomello, National Governments and Control of the Internet: A Digital Challenge (New York: Routledge, 2005) 57-58.

[iv] See Marvin Ammori, “The ‘New’ New York Times: Free Speech Lawyering In the Age of Google and Twitter”, Harvard Law Review Vol. 127:2259 (2014) 2273-2274.

Picture credits: Fake-news… by portal gda.