September 18
2020

Disinformation and Hate Speech: A European Constitutional Perspective

Giovanni Pitruzzella and Oreste Pollicino

review by

Giuseppe B. Abbamonte

The central question addressed by the authors is how to strike a workable balance between freedom of expression and other fundamental rights, notably freedom of information. The book rests on the premise that freedom of information, which includes the dual right to inform and be properly informed, is at risk in the current digital and technologically complex internet environment. Most users are lulled into a false sense of online security, segregated by opaque algorithms and convinced they live in the best of all possible worlds where everyone shares their point of view. The authors are of the opinion that in reality users are prone to being manipulated more easily online and are confronted with fake news and hate speech on a daily basis without being aware of it.

Against this background the authors are of the view that the invisible hand of the digital market cannot provide a solution to the problem at hand in an environment dominated by a few tech multinationals and where users are constantly distracted and misled. They underline the importance of countering online disinformation given its potential to erode trust in government institutions and undermine democratic participation. They examine the global trend to regulate fake news and hate speech by describing how European, American and other regulators  are responding to these threats in the age of ‘bubble democracy’ and ‘predictive capitalism’.

The book is divided into three chapters. The first explores how technological innovation has changed the way information is produced, distributed, and consumed and describes the role of the states in protecting ‘truth’ as a precondition for the functioning of democracy. It illustrates the congenital ambiguity of the internet, which is still characterised by maximum decentralisation in the production of information, but at the same time by a few powerful gatekeepers to information and content. The concentration of the services making information and content available and usable in the hands of a few intermediaries give them the power to shape our lives and steer our behaviour. The authors explain in a clear and engaging manner why the platforms’ economic model, which is based on user profiling and customisation of advertising, may lead to polarisation and to the spread of hate speech and fake news. They contend that the process of distribution of information is non-transparent and leaves the user entirely in the dark about the underlying methods and criteria. The ability to profile users not just as consumers but as voters can be combined with the use of fake news and hate speech to steer their political choices.

The authors explain in a convincing manner why it is increasingly difficult to speak about a ‘marketplace of ideas’ in an environment where individuals are closed in an information bubble that reflects the spectrum of their interests and confirms their convictions and prejudice. The decline of traditional media, and their ever-increasing dependence on platforms for distribution of content, aggravates the problem. The worsening of the quality of information often coming from unreliable sources contributes to the creation of an environment which is conducive to fake news and instigation to hatred.

The second chapter further covers the relationship between freedom of expression and other fundamental rights, such as copyright and data protection. The authors analyse several leading decisions of the European Courts in Strasbourg and Luxembourg and the United States Supreme Court to explain the different levels of protection granted to free speech on both sides of the Atlantic. They demonstrate convincingly why this divide has grown deeper in the digital world with new technologies triggering opposite reactions in Europe and the United States: a more suspicious attitude in the old continent, that tends to confirm free speech restrictions to protect other rights, as opposed to a hands-off, more liberal approach in the United States. They argue in favour of a coherent public response to limit the circulation of disinformation and hate speech and avoid a system of pure private censorship with platforms playing the role traditionally assigned to judges and courts. In my opinion, this conclusion  is even more compelling in the light of the recent removals by Facebook and Twitter of the posts of the President of the United States over false COVID-19 claims.

In the third chapter the authors examine various regulatory attempts to tackle disinformation across the world. They start with the 2018 EU strategy on countering disinformation and the Code of Practices signed by the main platforms and several advertising associations in Europe. They go through the main EU policy initiatives on platform accountability, including the Code on countering illegal hate speech, the new Audiovisual Media Services Directive and the recent Copyright reform.  They briefly examine and compare a  number of policy interventions in various States, including Germany, Italy, France, the United Kingdom, the Russian Federation,  Singapore and Malaysia. They claim that different national approaches varying in terms of targets and scope may complicate the regulatory landscape and result in different levels of constitutional protection of the right of information and other fundamental rights not just across the globe, but also within Europe.

The book’s overall conclusion is that there is a need to act swiftly and counter disinformation and hate speech. Given the complexity of the problem, a mix of policy tools would have to be put in place to protect our various fundamental rights online. In the authors’ view consumer empowerment through effective media literacy initiatives is essential, but they propose to follow a robust co-regulatory approach with the establishment of procedural safeguards and sanctions to ensure that user rights are not violated or disregarded altogether. I tend to share this point of view and reject the idea that the internet should be a space without specific rules immune from the logic of the Rule of Law. It is doubtful that self-regulation alone may be sufficient to address the problem because of its well known inherent limitations, which are clearly spelled out in the book.

In my opinion, an issue that will deserve further academic discussion is the choice of the legal basis of such a co-regulatory instrument. At EU level the most likely legal basis would be Article 114 TFEU, which however requires a sound demonstration that the regulatory initiative is needed for ensuring the functioning of the internal market. However, as acknowledged by the authors, the digital single market case will have to be made convincingly and be prevalent in relation to other non-economic objectives that may be pursued by a potential legislative proposal. Another interesting connected question is how to gauge self-regulation success. In other words, which benchmarks and indicators need to be put in place to assess the effectiveness of industry’s self-regulatory efforts. This issue is particularly important because a demonstration that industry endeavours are insufficient  would trigger the regulatory backstop and justify the intervention of the public authority.

Because of its engaging and informative style the book may appeal not just to legal scholars and practitioners but also to ordinary readers who take an interest in the regulatory challenges and threats posed by the internet and possible policy responses.

 

Giuseppe B. Abbamonte is the Director for Media Policy and Copyright at the European Commission. His recent publications include ‘The Reform of the European Audiovisual Market’, Giappichelli Publishing, Milan 2019; and ‘The Protection of your Computer Privacy”‘ in Columbia Journal of European Law, 21 column, 2014.  

 

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