The Guest Blog


Guest post by Doriane de Lestrange, lawyer focusing on EU Regulatory law


The High Level Group on Fake News is about to hold its inaugural meeting this January 2018, at a time where more and more Member States are addressing this topic at national level thus pressuring the EU Commission to act against fake news.

President Macron’s recent announcement (3 January) that a law against fake news is in the making in France has given new impetus to this topic at EU level. EU Digital Commissioner Mariya Gabriel has been entrusted with the task to design solutions on how to counter fake news and the online spread of disinformation. In this regard, the Commission has launched a public consultation (which results will be collected until the end of February 2018) and is setting up a High Level Group to advise on policy initiatives to counter this phenomenon.

With several initiatives coming from different member states, the Commission is now under pressure to act against illegal content and fake news. Germany recently issued a law that will impose a €50 million fine to social media firms which fail to remove illegal content such as hate speech. Other EU leaders declared their intention to adopt stricter approach towards these practices. Last September, during the Tallinn Digital Summit, 27 heads of Member States governments signed a document calling for a better framework. Preliminary conclusions of the Prime Minister of Estonia mentioned: “We need to shore up the integrity of our free and democratic societies in the digital age, by protecting the citizens’ constitutional rights, freedoms and security online (…) with both appropriate judicial framework as well as technology”.

Last November, Mariya Gabriel declared at a Brussels conference “It is vital that we vaccinate our society against this disease so as to maintain our democratic values and strengthen them”

A threat to Freedom of Speech?

Based on the understanding that false information obviously are to be fought and banned from social media but also from all other platforms relaying news, one cannot help but think that the term “fake news” can be a risky phrase.

Indeed, this debate raises a lot of complex questions. Amongst them, is the risk to limit dangerously the freedom of the press and to regulate which information could be relayed or not. Also, should public institutions be in charge of determining what is fake or should the judges rule on a case-by-case assessment of what needs to be done ?

If, like in the future French legislation, the prohibition was to apply during electoral period only, what about the rest of the year and the definition of such a period of time ? Another example being the recent German law on fake news leaving to online platforms such as Facebook or Twitter the responsibility to distinguish between the true and the false, thus creating a risk of privatisation of censorship.

Last but not least, the EU Commission public consultation and High Level Group’s principal aim is to determine the definition of the word “fake”. One can easily understand how this definition could be difficult to draw up and how hard it would be to remain objective in order not to cross a dangerous line and to open Pandora’s box. The border between fake illegal information and crime of opinion could become a thin one and could lead to hazardous situations. That is where the main difficulty lies: not to come up with biased criteria and illegitimate prohibitions.

Alternative solutions?

Until now, according to the EU Commission, fake news “consist of intentional disinformation spread via online social platforms, broadcast news media or traditional print”.

During last April’s (2017) plenary session, MEPs noticed that an obvious gap is appearing between respectable serious media and platforms relaying unverified fake news. Since social media have become the main source of information, especially for young people, they agreed that the need for education on media and on how to detect false information is increasing and becoming fundamental. According to Julia Reda, German MEP, pure technological solutions are not going to solve the problem and innovative initiatives must be taken to fight against fake news. For instance, extend to all online actors the principles of journalism’s deontology and ethics.

Other actors believe in the efficiency of fact checking and the refuting of fakes, such as, an organisation specializing in the fight against fake news about Ukrainian events.

On 9 January, several online platforms’ leaders met with the Commission to discuss the removal of hate speech and illegal content from the internet. They stressed the need for clarification on what kind of content is illegal and outlined the importance to avoid a fragmented patchwork of legislations across Europe. They also argued that such legislations should not give too much responsibility to online platforms to determine what is illegal or not.

Even if the EU remains far away from the “Ministry of Truth,” described long ago by Orwell, it is crucial to pay attention to every detail in this debate in order to prevent serious breaches to the freedom of speech and freedom of the press. Prohibition of fake news has to be righteous and legitimate and must not become an instrument for information warfare.






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