“Fake news is bad, but the ministry of truth is even worse”: Europe Considers Regulation for the Post-Truth Era


Post-Truth is Born in the USA

As Donald Trump’s new status as leader of the free world starts to take effect, questions continue to circulate regarding the factors that influenced his rise to power.  One that remains unanswered is the extent to which fake news reports, promulgated during critical periods of the election campaign, impacted upon the outcome and whether measures can and need to be taken to prevent this phenomenon from occurring again.  News sites informing the voting masses of stories such as “Pope Francis Shocks World, Endorses Donald Trump for President, Releases Statement” would certainly appear to have a lot to answer for.

The Fake News Epidemic

There have already been warnings on this side of the pond that fake news spread via online media may be swaying public opinion.  The UK’s Brexit referendum in June 2016 was dogged by allegations of exaggeration and outright dishonesty by both sides.  The Leave campaign repeatedly accused its opponents of conducting “Project Fear” to overplay the likely economic consequences of Brexit; conversely, few will forget quickly the Brexiteers’ claim that leaving the EU would free up £350 million for investment in the NHS, or the “Breaking Point” poster on immigration, depicting queues of migrants at the Croatian-Slovenian border (and not the British border as it appears may have been the intended implication).  Yet, despite the blurriness of claims made by both sides on these issues, it was indeed these issues that dominated the dialogue in the run-up to the vote on 23 June and it seems highly likely played an important role in determining Britain’s future position.

Equally, during a referendum in Italy in December 2016, called to determine its Prime Minister’s proposals to reform the Italian political system, claims were made that half of all online news stories relating to the vote the day before it took place were in fact fake.

Proposals for Regulation

Following the surprising rejection of the proposed constitutional reforms, the head of Italy’s competition authority, Giovanni Pitruzella, (among others) has now called for rules to be imposed (and state bodies to regulate compliance with those rules) to prevent what he described as a “driver of populism” and a “threat to our democracies“.  His suggestion is that each EU Member State should set up an independent body tasked with identifying and removing fake news, and imposing fines as appropriate.

Mr Pitruzella is not alone in taking this threat seriously.  In Germany, a country due to hold parliamentary elections during 2017, a law has been proposed that would oblige social media companies to set up dedicated local offices staffed with personnel to investigate and take action to remove (if necessary) fake news posts within 24 hours and would expose them to penalties of up to €500,000 per news items for failure to do so.   Other European countries facing government elections in 2017 include the Netherlands, France, Hungary, Slovenia and Norway.

The Online Liability Battle

This latest dilemma of how best to regulate the ever-increasing power of digital and social media providers can be viewed as part of a wider and older debate as to who should accept ultimate responsibility for content hosted online.  Sites such as Facebook have, for many years, faced repeated attempts by European courts and regulators to erode the historical limitations on liability afforded to internet intermediaries under the E-Commerce Directive and related legislation (which pre-dates even Facebook’s incorporation date, never mind the phenomenon of fake news).   Key in their line of defence has been an ability to demonstrate that they play no active role in monitoring the content hosted on their sites.  Should legislation such as that threatened in Germany come into force, this may put paid to such arguments in the future and make it difficult for them to deny legal liability.

In an effort to co-operate with (or potentially pre-empt) advocates of greater regulation in Europe, internet companies have more recently started to volunteer self-regulation to address the burning issues in respect of which they most commonly face scrutiny.  In May last year, Facebook, Twitter, YouTube and Microsoft worked together with the European Commission to draft and agree a “Code of Conduct” aimed at tackling hate speech online.  This initiative, however, is a good example of the continent-wide opinion split on how forceful European regulatory bodies should be in stipulating levels of acceptable conduct for online companies – critics of the Code accused it of “downgrading the law to second-class status” as a “voluntary and unaccountable take down mechanism“.

Increased regulation of fake news such as that proposed by Germany would of course have potentially serious implications for internet companies’ profits.  In recognition of this, voluntary steps are again being offered up by the leading social media sites in the hope of staving off the full weight of the proposed legislation.  For example, Facebook has taken similar voluntary steps in response to criticism of its role in disseminating fake news.  It has simplified its processes for reporting fake news articles and has announced that it will seek partnerships with third-party fact-checking organisations who will verify complaints (and has already announced a partnership with fact-checker Correctiv in Germany).  It has also explained how it will use complicated algorithms to downgrade articles verified as fake news.

But will this be enough?  Yesterday, European Commissioner Andrus Ansip announced that the EC would be closely following the voluntary steps taken by online platform and would issue guidance later this year.  Explaining the EC’s position he stated “I really believe in self-regulatory measures, but if some kind of clarification is needed then we will be ready for that.”  As US internet companies continue to dominate, the mood in Europe does appear to be heading in one direction – as the German Minister for Justice put it recently “A company that earns billions from the Internet also has a social responsibility.”  Coupled with the pressure of crucial European elections looming in 2017, and the dangerous consequences of fake news playing out live across the Atlantic as the Trump presidency beds in, this sentiment seems likely to reach a pinnacle in the coming months.  The window for action by online platforms is not yet closed, however; hinting at a reluctance to over-regulate, Ansip also remarked “fake news is bad, but the ministry of truth is even worse“.

Bryony is a partner in our Dispute Resolution Group, based in London, specialising in commercial litigation and technology and media law. She advises our clients on complex, fact-heavy commercial disputes, with a primary focus on disputes relating to the technology, communications and media sectors. She acts for both corporate clients (including IT and telecommunications providers, major film and broadcasting organisations, and internet corporations) and individuals on disputes spanning the commercial spectrum.

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