Part 2: How to reign in Big Tech and cure ‘fake news’ without killing free speech

Irini Katsirea - Reader in International Media Law, University of Sheffield

Public health is one of the narrow grounds for the restriction of free speech. However, under the principle of proportionality it is imperative that there is a direct and immediate link between the expression and the alleged threat, and that the chosen method to restrict expression is necessary and proportionate (D. Kaye, ‘Disease pandemics and the freedom of opinion and expression’ (UN General Assembly, 23 April 2020) ).

In the US context, the removal of false claims should be reserved to such speech that is likely to incite imminent lawless action, as recognised in First Amendment doctrine. In cases that do not meet this threshold, the flagging of clearly inaccurate information is a more proportionate response compared to its outright removal. Still, the identification of such false information with the help of independent fact-checkers also bears risks. The characterisation of a fact-checking service as ‘independent’ is not cast in stone and can become a matter of contention. Facebook has cooperated with partisan fact-checkers in the past, and other platforms might tread the same path. Nor is it implausible to assume that erstwhile neutral fact-checkers could become subject to media capture.

Even greater risks are posed by the reliance on automated content moderation as well as appeal and review processes. Such recourse to automation has been increasingly resorted to recently as a result of depleted workforces due to the pandemic. These intricate issues raise the question whether social media platforms should be held accountable through a code of practice or legislation, and how the balance with freedom of speech should be struck.

Big Tech accountability and free speech

In recent years, there has been a reconsideration of the continuous validity of the liability exemptions, that have facilitated the platforms’ unbridled growth, especially as regards potentially dangerous or illegal content. In the EU, the revision of the rules concerning online platforms is discussed in the context of the Digital Services Act, which is intended to act ‘as a standard-setter at global level’, underpinned by ‘due-diligence obligations’ and backed by a ‘new national and European regulatory and supervisory function’. It reflects the perceived need to harmonise the existing unwieldly ‘patchwork of national measures’, such as the German Network Enforcement Act or the French Avia Law, and to possibly influence the forthcoming UK Online Harms bill. At the same time, the fact remains that platforms do not ordinarily actively curate content in the way editorial desks would. Social media platforms rely on their users to post or share content, and search engines depend on websites to make their offering accessible to them. Their editorial decision-making is mostly related to the organisation of content rather than its production. This difference needs to be taken into account when balancing increased accountability with the right to freedom of speech.

Blueprints for an effective solution

An effective solution would need to focus on the organisation of content rather than its production, building on the experience gained by audiovisual regulators under the Audiovisual Media Services Directive rules for video-sharing platforms. The organisation of content by social media platforms is a focal point of the German Interstate Media Treaty (Medienstaatsvertrag, MStV), which has been adopted after lengthy negotiations.

The new Media Treaty is the first legislative attempt in Europe to regulate social media platforms’ algorithms for diversity and transparency. The extent to which the Treaty’s requirements will succeed in penetrating the opacity of algorithms, and in delivering information about the aggregation, selection and presentation of contents that is intelligible, yet detailed enough to be useful, remains to be seen. It is important that such transparency obligations also extend to platforms’ moderation policies, including those on misinformation. The criteria on the basis of which platforms police users’ content, as well as their user notification and appeal procedures need to be human rights informed and subject to scrutiny.

Notably, the new Media Treaty also extends journalistic due diligence obligations to professional journalistic-editorial services, which regularly contain news or political information, such as blogs of a non-private nature. Greater transparency for and oversight over platforms’ content policies coupled with greater supervision of online news providers are a starting point towards tackling the current information disorder. The findability of public interest content as well as the provision of financial support for and partnership with trustworthy news media also provide a powerful bastion against misinformation.

An earlier iteration of this blog post was originally published on the ILPC Spotlight Series blog.