The rise of disinformation, the responses and the regulatory approach

The rise of social media and disinformation
The internet has allowed access to an unprecedented amount of information to an immense number of people worldwide. Undoubtedly, the free and easy mode of accessing and sharing information has been facilitating but has not led to the information utopia the early proponents of the internet hoped for because of the rapid spread of false and decontextualized information as an outcome of the rise of social media. It is often the case that voluminous content is selected by engagement-optimizing algorithms aiming at attracting attention from users rather than providing information mediated by professional journalism.

What is ‘disinformation’ and what are its consequences?
The European Commission`s definition of disinformation is ‘the verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public and may cause public harm’. The spread of disinformation can harm society, by confusing and manipulating citizens, distorting public opinions, and influencing policy-making processes.

Following the 2016 US election, the ‘fake news’ concept was widely used, mainly for degrading the media. According to experts, the term is too vague and ambiguous to capture the essence of disinformation and should be abandoned; and more precise terminology should be preferred. Governments need to take measures against disinformation as it undermines human rights and many elements of good democratic practice but at the same time by taking counter-disinformation measures, the impact on human rights and democracy may be harmful.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides the right for freedom of expression and opinion by stating that ‘[e]veryone shall have the right to hold opinions without interference’. This is important when deciding about the measures taken for dealing with disinformation. According to Article 19(2), the right to freedom of expression includes the ‘freedom to seek, receive and impart information and ideas of all kinds’.  The United Nations Human Rights Council and General Assembly have stated that freedoms apply offline and online. Article 19(3) of ICCPR explains the situations in which states may adopt restrictions on content, which are limited to situations where any restriction to the right to freedom of expression must be provided by the law and has to be necessary to protect the rights or reputation of others and ‘[f]or the protection of national security or of public order…or of public health or morals’. The applicability of this restriction strictly depends on the tests of necessity and proportionality and ensures that only the objective is targeted and not the rights of the targeted persons. It also mentions that restrictions must be ‘the least instrument amongst those which might achieve’ a specific result.
 
Disinformation in times of crisis:
Disinformation during COVID-19 crisis
The COVID-19 pandemic has been described by the Vice President of the European Commission for Values and Transparency,  Věra Jourová as an ‘infodemic’ since disinformation created around it has harmed the health of citizens, negatively impacted the economy, and undermined the response of public authorities. The uncertainty created by the pandemic in combination with the limitation of the physical mobility of people because of the lockdown measures increased the information consumption and, consequently, resulted in overexposure to an increased amount of ‘fake news’, pseudoscience, conspiracy theories which caused distrust in public institutions. All this was during a time when the public needed to access information from reliable sources, leading to a number of people behaving riskily by ignoring official health advice. Disinformation, in turn, may have an impact on human rights as individuals may be influenced in such a way that prevents them from exercising their right to health in accordance with Article 12 of the ICESCR (International Covenant on Economic, Social and Cultural Rights), as they are confused as to the guidance of science and authority related to the access to health care and medicines needed and the protection offered by vaccines.
To make matters worse, misinformation on the pandemic can also be traced to prominent public figures, including politicians and celebrities, who can potentially influence society. An example includes Donald Trump`s suggestion for research to be made on whether injecting disinfectant into the body can treat coronavirus. Further, one of his officials stated that sunlight and disinfectant kill the virus. The commonly available methods for killing the virus included bleach and alcohol. The recommendation made by politicians of injecting poisonous substances is dangerous not only because of the danger of people following them but also because it created distrust in public institutions.

Actions undertaken to tackle the spread of disinformation in relation to the pandemic, included the creation of monthly reports which described the actions that were undertaken by the platforms in tackling COVID-19 related disinformation, as part of the framework of the Code of Practice agreed between the European Commission and big tech companies. Additionally, social media platforms collaborated with the UN system aiming to prevent the spread of disinformation. The WHO`s (World Health Organization) actions included the search of disinformation spread on social media by a team of ‘myth busters’ and the launch of the Africa Infodemic Response Alliance whose aim was to coordinate the international organizations, governments, and fact-checkers actions in to tackle disinformation on COVID-19.

The pandemic urged governments to enforce regulations aimed at targeting disinformation. There have been actions aimed at responding to disinformation while at the same time ensuring the preservation of pluralism and human rights. Non-democratic regimes used the pandemic to their advantage and aimed at constraining their political opposition by restricting freedom of expression and freedom of media. 

Some of those regulations raised concerns about the violation of the right to information and free press. Examples include Turkey`s action in launching legal proceedings against social media users whose posts on social media were described as ‘provocative’ because the authorities considered them to result in hatred and enmity by spreading concern about COVID-19.  Further, the state media regulator in Russia published a warning according to which ‘the dissemination of false information’ and attempt to ‘sow panic among the public and provoke the public’ would be met with punitive damages. The state media regulator forced two media outlets in the country to remove COVID-19 reposts from their social media and websites. China created a COVID-19 disinformation campaign, which was criticized by RSF (Reporters Without Borders). By attempting to avoid the blame from the virus spreading, Chinese officials made suggestions passing the blame to the US army for bringing the epidemic to Wuhan and even suggested that coronavirus cases have been detected in parts of Italy before the outbreak of COVID-19 in China.

The unprecedented times COVID-19 created, also urged parliaments within the EU to adopt laws to deal with disinformation. In November 2021, Greece`s parliament adopted a criminal code provision according to which the spread of disinformation, and specifically the dissemination that occurs in public or online, of any information that ‘causes concern or fear among citizens’ or disturbs public confidence in the national economy, defense, or public health is, according to Article 191 of the amended criminal code, a criminal offense, punishable with up to five years in prison and penalties. The previous version of the Penal Code did not include public health in the list of sensitive sectors and provided for a prison sentence ranging from six months to three years in cases related to the dissemination of false information that had ‘the effect of causing fear’ or caused ‘a risk of harm’ to the society. The change in the criminal code provision raised concerns regarding the violation of press freedom. Reporters ‘Without Boarders’ suggested that the optimal way to fight against disinformation is to focus on systematic support for reliable news and information in the media and social networks.


Russia and the ‘fake news’ law amid Russia`s invasion of Ukraine
The ongoing Russian invasion of Ukraine that started on 24 February 2022 forms one of the current examples of how countries around the world are dealing with the spread of disinformation. At the same time, it illustrated that laws on disinformation or ‘fake news’ can harm society. Specifically, social media platforms including Facebook, Instagram, and Twitter that disseminate Russian-language information are blocked, while TikTok has temporarily banned the uploading of new content from users located in Russia to de-escalate the information war, as a response to Russia`s intensification of the repression on foreign platforms and local media. Similarly, in March 2015, following the annexation of Crimea and the destabilization of eastern Ukraine, the European Council highlighted the need to challenge the ongoing disinformation campaigns.
On the 4th of March 2022, Putin signed a ‘fake news law’ according to which journalists who do not portray the conflict in Ukraine mirroring the Kremlin`s portrayal of the conflict; are threatened with up to 15 years of imprisonment and fines of 1.5 million rubles (around €13,000). The outcome of this law is that independent Russian television channels and radio stations were forced to shut down, and audiences are exposed to information that minimizes the severity of the conflict in Ukraine and falsely presents the invasion as a peacekeeping operation that aims to act against Ukrainian aggressors. Between February 24 and March 20, more than 15,000 Russians were detained for protesting against the invasion of Ukraine, according to OVD-Info (an independent Russian human rights media project whose aim is to combat political persecution). This act was approved by the duma, a Russian assembly with advisory or legislative functions, according to which those who spread information ‘with the artificial creation of evidence of the accusation…. based on political, ideological, racial, national, or religious hatred or enmity’ can receive a 10-year jail sentence, or up to 15 years if their actions cause ‘grave consequences’. According to the U.S. – based Committee to Protect Journalists, more than 150 Russian journalists have left Russia because of the ‘fake news law’.
 
Methods of combating disinformation
The tackling of disinformation has been approached through different responses from legislative and executive bodies.

Τhe types of responses ranged from elaborating codes of practice and best practice guides to enabling verification networks that debunk disinformation. Additionally, initiatives have been launched by corporations based on which disinformation would be contained in their cyber-space, even though the extent of the amount of disinformation makes this impossible to be achieved.

A proposal by the European Commission includes the Digital Services Act (DSA) that makes intermediaries and platforms responsible and accountable for tackling and preventing illegal content and the spread of disinformation. Because of their risks related to disinformation, very large online platforms (VLOPs) will be obliged to include provisions on mandatory risk assessments, risk mitigation measures, independent audits, and the transparency of “recommender systems” which are algorithms responsible for the content shown to users.

Furthermore, the EU has funded a number of projects through the Instrument Contributing to Stability and Peace which has illustrated the importance of cooperating with civil society organizations in addressing the Disinformation challenge. Some of the EU projects funded through the Instrument contributing to Stability and Peace; were created in order to assist by providing answers as a response to the disinformation linked to the pandemic. An example includes the EU-funded project ‘#CoronavirusFacts: Addressing the ‘Disinfodemic‘on Covid-19 in conflict-prone environments’, which was implemented by UNESCO in a number of third world countries.


The project supports not only media professionals in spreading facts-based content but it also empowers citizens in making their decisions based on facts.  For society to be actively involved it is important to educate the society to recognize the risk of disinformation and provide it with tools to spot it and reach its own conclusions. Therefore, digital media literacy is crucial when fighting against disinformation.

Additionally, when it comes to legislation dealing with disinformation, it is important to ensure that social media platforms are made more transparent. Therefore, legislation that requires the disclosure of advertisements, bots, and the source`s geographical location may assist in dealing with disinformation campaigns. Even though progress has been made by the EU in tackling disinformation within the EU, efforts in tackling disinformation outside Europe still must be made with a stronger human-rights focus.  When considering external relations, it can be said that the EU has tended to approach disinformation as a geopolitical problem, failing to consider the impacts within third countries. Another problematic area about disinformation and the EU is the fact that the EU`s commitment to ensure that disinformation does not weaken global human rights is more a theory than the actual EU`s practice, as in reality it has increased, both commercial and security ones, with regimes that abuse human rights and undermine democratic checks and balances using disinformation.

Another approach could be to make social media platforms liable when they fail to remove false content. This approach could be met with criticism for being aggressive and potentially problematic, as it could lead to the precautionary removal of content to avoid fines that could be imposed. It can also lead to situations where the government or other actors oversee the decision of what should be removed and what can stay. One must consider that the approaches that do not incorporate due process mechanisms are not in line with freedom of expression principles.


The EU and third country local communities
When dealing with disinformation, it is crucial to engage third countries in the process. This could be done through generous support to third-country local communities by the EU which is also an approach compatible with human rights and follows the available policy instruments of the EU concerning third countries.
Αmong the ways for achieving this includes offering support to third-countries local initiatives who have their own tools and capacities for addressing disinformation. Additionally, by increasing support for a wider range of media sources, that could be advantageous in the long-term.

Another recommendation for the EU is the rapid response to disinformation surges. Disinformation surges occur, as seen, during conflicts, health emergencies, international summits of importance, and at the times of elections. The EU's approach could involve ring-fencing an amount of funding that could be released speedily to tackle disinformation campaigns and ensure they do not reach a dangerous level.

Additionally, the EU could empower small-scale deliberative forums targeting disinformation.  Finally, the EU can run trainings in digital literacy and tech skills which would combine tech-oriented training with human rights training.

It is vital to ensure that there is a need for global dialogue when addressing misinformation. The promotion of a broad global forum amongst democracies could be promoted by the European Parliament. The aim of which would be to ensure that the new regulations, laws and standards of online content in third world countries promote democracy and human rights over disinformation.

Conclusion
The difficulty when tackling disinformation is that its effect on human rights is double-edged. This means that by accepting the existence of disinformation, we risk the infringement of core human rights, including the freedom of thought, the right to participation, the right to privacy, and other rights linked to cultural, economic, and social factors. At the same time, we accept its threat and diminishment of democratic quality as it has the power to influence elections; increase digital violence and repression. On the other hand, legislation that is not carefully drafted and does not consider freedom of expression rights can lead to concerning results.

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