19 March 2021

Criminalising Fake News

'Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation' by Rebecca K Helm and Hitoshi Nasu in (2021) 21(2) Human Rights Law Review 302–328 comments 

National authorities have responded with different regulatory solutions in attempts to minimise the adverse impact of fake news and associated information disorder. This article reviews three different regulatory approaches that have emerged in recent years—information correction, content removal or blocking, and criminal sanctions—and critically evaluates their normative compliance with the applicable rules of international human rights law and their likely effectiveness based on an evidence-based psychological analysis. It identifies, albeit counter intuitively, criminal sanction as an effective regulatory response that can be justified when it is carefully tailored in a way that addresses legitimate interests to be protected. 

Helm and Nasu argue 

 Early proponents of the internet imagined an information utopia, in which information freely and easily shared would yield tremendous benefits to society. However, the widespread exploitability of information on the internet generally, and social media more specifically, has allowed so called ‘fake news’ to impact individuals’ perception of domestic and international affairs. ‘Fake news’ has been defined as ‘fabricated information that mimics news media content in form but not in organizational process or intent.’ It encompasses misinformation (false or misleading information) and disinformation (false or misleading information disseminated with the specific purpose of deceiving people)—two types of information disorder. 

In response to the rise of fake news through social media, national authorities have responded with different regulatory solutions in attempts to minimise or eliminate the adverse impact of information disorder. The implementation of these measures is fraught with difficulties, with earlier studies raising concerns about their compatibility with freedom of expression and speech. Traditionally, in some parts of the world at least, freedom of speech has been treasured with the ‘marketplace of ideas’ metaphor, which Justice Oliver Wendell Holmes Jr articulated in his cherished dissenting judgment in Abrams v United States

However, increased polarization and algorithmically dictated content dissemination and consumption make this metaphor less appropriate in today’s society, where truth may not be emerging from such a ‘marketplace.’ Due to the distorting impact of fake news for democratic decision-making processes, harmful consequences may well be perceived to outweigh the benefit of free speech for society and democratic processes. Normative considerations must therefore be carefully weighed against the need to ensure that regulatory responses effectively combat fake news. There are critical gaps in literature where rigorous analysis is needed for precarious balancing between normative compliance and psychological effectiveness in the crafting of the regulatory response to fake news. 

This article addresses this precarious balancing by critically evaluating different regulatory approaches in terms of their normative compliance with the applicable rules of international human rights law, and their effectiveness to achieve the regulatory goal according to an evidence-based psychological analysis. To that end, it outlines the criteria that regulatory regimes should aim to meet both empirically (Section 2) and normatively (Section 3) and evaluates three different regulatory approaches based on these criteria (Section 4). This article concludes with the finding that some level of restriction on freedom of expression is inevitable due to the need to discourage the creation and distribution of fake news, rather than just preventing its spread. 

In particular, this article identifies, albeit counter-intuitively, criminal sanction as an effective regulatory response. Contrary to broad normative claims worshipping freedom of expression, careful analysis of normative requirements under international law suggests that criminal sanction can be justified when it is tailored in a way that specifically, and with sufficient precision, addresses legitimate interests to be protected with varying degrees of safeguard required under each jurisdiction against abuse, including an opportunity to contest allegations of falsity. However, it is cautioned that the introduction of interventionist measures necessarily involves social cost due to the chilling effect they have on the socially beneficial free flow of information. The extent to which social benefits of free flow of information are perceived to be outweighed by the public interest in the removal of the societal harms generated by fake news may vary depending on how much social cost each society is prepared to accept.