Censorship or Protection: Fake News and Freedom of Speech

 

Abstract

The rise of social media gave rise to fake news crisis around the world. Information on the internet spreads virally regardless of credibility of its sources. The 2016 US election raised concerns that fake news on social media is posing a serious threat to democratic societies. This paper evaluates countries’ policy struggles to counter fake news in terms of three entities: government, social media companies, and audience. Southeast Asian governments, such as Singapore, Malaysia, and Thailand, resorted to policing the online platforms themselves, which faced harsh criticism as a weapon to suppress political opponents. European countries passed laws that penalize online platforms when they fail to take down illegal contents within given time, represented by Germany’s Network Enforcement Act. Social media companies, including Facebook and Twitter, strongly opposed to these policies and developed their own self-regulatory mechanisms that offer different viewpoints without themselves having to determine what is true and false. The United States is working on promoting media literacy education, teaching citizens to apply critical skills to information presented by social media. If the online environment becomes self-sustainable enough, leaving no room for fake news to flourish, social media can turn out to be a vibrant platform to cultivate political interests and civic participation.

 

I. Introduction

The internet age is marked by the rise of social media as a primary source of information, shaping political behavior and public opinion around the world. Online information spreads at an extraordinary pace, but with less commitment to truth, compared to traditional media. Consequently, dominating the flow of information has become an indispensable factor in winning today’s elections. Online propaganda, which is not necessarily factual or true, flourishes as a means of waging attacks on opposing candidates. It is no secret that governments nowadays, for example, “set up teams, made of public officials volunteers, fake accounts and bots – a software application that runs automated tasks over the internet to interact with and mimic human users – or a mix of those to manage and influence public opinion online.”[1] The concept of “fake news” became mainstream during the 2016 US presidential election when it was widely attested that false information on social media attracted a disproportionate number of low information voters. This raised concerns that fake news and social network services in which they are presented are distorting users’ understanding of reality and threatening democratic societies.

Although many policymakers pinpoint fake news as an urgent issue to deal with, the term is problematic when it comes to its definition, let alone resolution. It may vary in terms of its publisher, degree of falsity, intentionality, and severity of ramifications. Fake news is broadly defined as “any incorrect information that has been created intentionally under the guise of a fact.”[2] Another scholarly paper defines it as “news articles that are intentionally and verifiably false and could mislead readers.”[3] Setting the definition issue aside, regulating fake news is challenging because it inherently compromises citizens’ freedom of expression. Arguments against any kind of fake news regulations often adopt the notion of “marketplace of ideas,” which holds that “the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority.[4]” In the past, it was the job of journalists and the media themselves to serve as the gatekeepers and arbiters of truth; however, the proliferation and increasing influence of fake news is making policy interventions inevitable. Thus, this paper explores various legal and non-legal approaches to fighting fake news on a global scale in terms of three respective entities: the government, social service companies, and audience. This would shed light on the dilemma of balancing freedom of speech and access to accurate information.

 

II. Legal Approaches

1. State intervention

Government control over the news media was a defining characteristic of authoritarian states, but today even democratic states are trying to exert influence on the Internet under the pretext of curtailing fake news. Countries across Southeast Asia have recently passed laws that criminalize the publication or circulation of fake news and/or impose obligations  to remove them from the internet. The Singapore Parliament  enacted ‘Protection from Online Falsehoods and Manipulation,’ which allows government ministers to “order social media sites to put warnings next to posts that authorities deem to be false, and in extreme cases get them taken down.”[5] Malaysia also implemented Anti-Fake News Act in 2018 criminalizing the spread of any fake news; those found guilty of breaching the law could be imprisoned for up to six years and forced to pay fines of up to 500,000 ringgit. The law was accused of protecting the then Prime Minister from further exposure to a corruption scandal and was repealed in October 2019. In Cambodia, Information Ministry announced renewed warnings to revoke the licenses of media outlets that are “found guilty of spreading disinformation that threatened national security.”^[6] These cases clearly illustrate that fake news laws can be abused for political purposes by the government to silence dissenters and to stifle  free speech. Under the laws, legislators can unilaterally determine what fake news is and criminalize its distribution online. Platform users would be reluctant to post online because they may get punished if the government deems it to be subversive or revolting. This runs counter to its declared purpose of safeguarding democracy, eroding public trust in government and paving the way for so-called “digital authoritarianism.”[7]

2. Regulation of online platforms

An alternative to direct state monitoring is to impose penalties to entities that take part in the creation and circulation of “illegal contents”. Many European countries have turned to the strategy of levying the responsibility on social media companies to handle the fake news phenomenon. Germany was a pioneer in this movement, introducing “Network Enforcement Act” which came into effect in January 2018.[8] Online platforms such as Facebook and Twitter may face fines of up to €50m if they do not remove “obviously illegal” hate speech and other postings within 24 hours of receiving a notification and “illegal content” within a seven-day period.[9] French President Emmanuel Macron vowed to propose a law, a so-called “emergency legal action,” which would “include measures to make the backers of sponsored content transparent and empower an interim relief judge to either scrap fake news from the internet, or even block websites altogether during political elections.”[10] The UK parliamentary committee has embarked on an inquiry into the online distribution of fake news, also threatening online platforms with sanctions if the sites continue to reject disclosing information about possible Russian interference in the Brexit vote.[11] These demands for greater corporate responsibility may lessen direct pressure on internet users, but their freedom of speech is still open to the problem of censorship. Social networks will simply take down any post that is seemingly illegal in order to avoid harsh fines and bad reputation. Even if not, under this course of action, the legislator and the courts are empowered to “either decide what constitutes fake news or outsource this responsibility to social media.”[12] Facebook chief executive Mark Zuckerberg has announced his plan to maintain the company’s policy not to take down political advertising that contains false information, accentuating that people should be able to see for themselves what the politicians are saying, and that a private company should not be censoring politicians or news.[13] Not only is it impossible for the companies to control the plethora of information online, but also it may be ethically wrong forcing them to select and delete what they consider to be fake news.

 

III. Non-legal Approaches

1. Self-regulation of social media

The  thriving fake news business is largely attributable to profit motive as publishers have been using fake news to drive more traffic to their websites which can subsequently result in more advertising revenues. This, however, could eventually bring about a loss of credibility and a concurrent drop in advertising revenue in the long run. Social media companies, however, are now reinforcing some self-regulatory mechanisms, enforcing transparent codes of conduct to enhance the environment in which their contents are presented and consumed. Facebook released a new feature offering “Related Articles” directly beneath controversial articles. This allows an “easier access to additional perspectives and information, including articles by third-party fact checkers,” helping the users to determine whether the news is false or misleading.[14] Although the issue of algorithmic accountability regarding the choice of the related articles still needs to be tackled, academic research confirmed the effectiveness of this method in reducing readers’ misconceptions due to fake news.[15] Other possible policy responses include: funding projects to develop a third-party fact checker, putting trust marks for verified sources, and warning flags for those of questionable credibility.[16] These actions do not necessarily require editorial judgment of what is true and false, ruling out the chance of infringing freedom of speech and press. The companies will be more willing to take part in revising their own system rather than to be faced with any kind of state intervention.

2. Media literacy education

Among various prescriptive measures against fake news is the media literacy approach, an audience-centered solution, which aims to equip the audience with adequate media consumption habits. It posits that users with greater media literacy will process fake news in a more critical manner, mitigating its negative impact on our society. Young people have access to increasing amounts of information on the Internet, but they often lack the ability to discern for themselves whether information is credible. Hence, educators emphasize the need to teach students basic skills from consuming information critically to creating and sharing contents online. Multiple studies proved that “accurate identification of fake news was significantly associated with information literacy…which focuses on people’s abilities to navigate and find information online that is verified and reliable.”[17] The United States is taking the initiative in this area, even trying to incorporate media literacy into its formal education. California signed into law a bill to promote media literacy education in public schools, requiring the state Department of Education to help teachers by providing resources on the subject on its website by the end of 2019.[18] Many news organizations, including the New York Times, have also published “lesson plans designed to help students develop the habits of mind necessary to critically evaluate online news content” through which they “learn about the complexity of the information and media ecosystems that serve as gatekeepers for the spread of (dis)information.”[19] Indeed, media literacy education may not be a sole remedy to the challenges of fake news, but it is essential for defending democracy in the long run without undermining citizens’ freedom and independence.

 

IV. Conclusion

In the end, combating fake news boils down to balancing freedom and responsibilities. Each country has developed its strategy to overcome the fake news crisis; State-based approach is to police the online environment themselves; social service companies have devised self-regulatory mechanisms such as providing related articles; and there is a movement to promote media literacy education. South Korea has also hopped on the anti-fake news bandwagon as many bills regarding fake news have been brought to the floor, although none has been set in motion. Despite the fake news phenomenon, it is undeniable that social media is also serving as an outlet for people to easily obtain information, share divergent views and engage in public discourse. Thus, policymakers should find a way to both take advantage of the positive potential of social media and mitigate the risks of harmful impact, without curbing people’s freedom of speech at the same time. Direct intervention can be dangerous because governments may manipulate online information to work to their political advantage. Therefore, boosting companies’ self-regulation mechanisms and enhancing citizens’ media literacy are some viable solutions that could fulfill the requirements. With the cooperation of social services and the government to offer a healthy, self-sustaining “marketplace of ideas,” internet users can turn out to be truth arbiters on their own. In this time of heightened attention about fake news, citizens should be prepared to get deep down to the truth that they all deserve.

 

References

Alberto Alemanno, Editorial: How to Counter Fake News? A Taxonomy of Anti-fake News Approaches, European Journal of Rise Regulation, Vol. 9, 1, 1 (2008).

Ashley Smith-Roberts, Facebook, Fake News, and the First Amendment, Denver Law Review, Vol. 95, 118, 123 (2018).

Dabian Tambini, Fake News: Public Policy Responses, Media Policy Brief 20, London: Media Policy Project, London School of Economics and Political Science, 1, 15 (2017).

Donald Barclay, Fake News, Propaganda, and Plain Old Lies: How to Find Trustworthy Information in the Digital Age, (2018).

Hunt Allcott and Matthew Gentzkov, Social Media and Fake News in the 2016 Election, Journal of Economic Perspectives, Vol. 31, No. 2, 211, 213 (2017).

Leticia Bode and Emily Vrada, In Related News, That Was Wrong: The Correction of Misinformation Through Related Stories Functionality in Social Media, Journal of Communication, Vol. 65, Issue 4, 619, 638 (2015).

Meghan Manfra and Casey Holmes, Media Literacy and Fake News in the Social Studies, Social Education, Vol. 82, No. 2, 91, 92 (2018).

S.Mo Jones-Jang, Tara Mortensen and Jingjing Liu, Does Media Literacy Help Identification of Fake News? Information Literacy Helps, but Other Literacies Don’t, American Behavioral Scientist, 1, 12 (Aug. 2019).

David Schultz, Marketplace of Ideas, https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas (last visited Decembber 2019).

The Rise of “Fake News” Laws Across Southeast Asia, https://www.publicmediaalliance.org/the-rise-of-fake-news-laws-across-south-east-asia/ (last visited December 2019)

Southeast Asia ‘fake news’ laws open the door to digital authoritarianism, https://www.dw.com/en/southeast-asia-fake-news-laws-open-the-door-to-digital-authoritarianism/a-50852994 (last visited December 2019)

Tough new German law puts tech firms and free speech in spotlight, https://www.theguardian.com/world/2018/jan/05/tough-new-german-law-puts-tech-firms-and-free-speech-in-spotlight (last visited January 2020)

Defiant Mark Zuckerberg defends Facebook policy to allow false ads, https://www.theguardian.com/technology/2019/dec/02/mark-zuckerberg-facebook-policy-fake-ads (last visited January 2019)

Sara Su, New Test With Related Articles, https://about.fb.com/news/2017/04/news-feed-fyi-new-test-with-related-articles/ (last visited January 2019)

Valerie Strauss, Why California’s new media literacy law for schools could backfire, https://www.washingtonpost.com/education/2018/10/01/why-californias-new-media-literacy-law-schools-could-backfire/ (Last Visited January 2020)

 

 

 

[1] Alberto Alemanno, Editorial: How to Counter Fake News? A Taxonomy of Anti-fake News Approaches, European Journal of Rise Regulation, Vol. 9, 1, 1 (2008).

[2] Donald Barclay, Fake News, Propaganda, and Plain Old Lies: How to Find Trustworthy Information in the Digital Age, (2018).

[3] Hunt Allcott and Matthew Gentzkov, Social Media and Fake News in the 2016 Election, Journal of Economic Perspectives, Vol. 31, No. 2, 211, 213 (2017).

[4] David Schultz, Marketplace of Ideas, https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas (last visited Decembber 2019).

[5] Ibid.

[6] The Rise of “Fake News” Laws Across Southeast Asia, https://www.publicmediaalliance.org/the-rise-of-fake-news-laws-across-south-east-asia/ (last visited December 2019)

[7] Southeast Asia ‘fake news’ laws open the door to digital authoritarianism, https://www.dw.com/en/southeast-asia-fake-news-laws-open-the-door-to-digital-authoritarianism/a-50852994 (last visited December 2019)

[8] Tough new German law puts tech firms and free speech in spotlight, https://www.theguardian.com/world/2018/jan/05/tough-new-german-law-puts-tech-firms-and-free-speech-in-spotlight (last visited January 2020)

[9] Ibid.

[10] Supra note 1, 3.

[11]Ashley Smith-Roberts, Facebook, Fake News, and the First Amendment, Denver Law Review, Vol. 95, 118, 123 (2018).

[12] Supra note 1, 3.

[13] Defiant Mark Zuckerberg defends Facebook policy to allow false ads, https://www.theguardian.com/technology/2019/dec/02/mark-zuckerberg-facebook-policy-fake-ads (last visited January 2019)

[14] Sara Su, New Test With Related Articles, https://about.fb.com/news/2017/04/news-feed-fyi-new-test-with-related-articles/ (last visited January 2019)

[15] Leticia Bode and Emily Vrada, In Related News, That Was Wrong: The Correction of Misinformation Through Related Stories Functionality in Social Media, Journal of Communication, Vol. 65, Issue 4, 619, 638 (2015).

[16] Dabian Tambini, Fake News: Public Policy Responses, Media Policy Brief 20, London: Media Policy Project, London School of Economics and Political Science, 1, 15 (2017).

[17] S.Mo Jones-Jang, Tara Mortensen and Jingjing Liu, Does Media Literacy Help Identification of Fake News? Information Literacy Helps, but Other Literacies Don’t, American Behavioral Scientist, 1, 12 (Aug. 2019).

[18] Valerie Strauss, Why California’s new media literacy law for schools could backfire, https://www.washingtonpost.com/education/2018/10/01/why-californias-new-media-literacy-law-schools-could-backfire/ (Last Visited January 2020)

[19] Meghan Manfra and Casey Holmes, Media Literacy and Fake News in the Social Studies, Social Education, Vol. 82, No. 2, 91, 92 (2018).

 

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