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Disinformation and Propaganda – Impact on the Functioning of the Rule of Law in the EU and Its Member States

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STUDY Requested by the LIBE committee Disinformation and propaganda – impact on the functioning of the rule of law in the EU and its Member States Policy Department for Citizens' Rights and Constitutional Affairs Directorate General for Internal Policies of the Union PE 608.864 - February 2019 EN Disinformation and propaganda – impact on the functioning of the rule of law in the EU and its Member States STUDY Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs and requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, assesses the impact of disinformation and strategic political propaganda disseminated through online social media sites. It examines effects on the functioning of the rule of law, democracy and fundamental rights in the EU and its Member States. The study formulates recommendations on how to tackle this threat to human rights, democracy and the rule of law. It specifically addresses the role of social media platform providers in this regard. ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) and was commissioned, overseen and published by the Policy Department for Citizens’ Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Marion SCHMID-DRÜNER Policy Department for Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected], [email protected] AUTHORS Judit BAYER (scientific coordinator, editor), Budapest Business School Natalija BITIUKOVA, Independent consultant Petra BÁRD, Central European University Judit SZAKÁCS, Center for Media, Data and Society at the Central European University Alberto ALEMANNO, HEC Paris Erik USZKIEWICZ, Hungarian Europe Society CONTRIBUTORS Sergio CARRERA, CEPS/ European University Institute/ Science Po/ Maastricht, contributed with comments and providing inputs to the Study. Julia GUERIN, CEPS Lina VOSYLIUTE, CEPS ACKNOWLEDGEMENT We are grateful to Kristina Irion and Éva Simon, as well as the other reviewers, for their valuable comments and ideas related to our paper. LINGUISTIC VERSION Original: EN Manuscript completed in February 2019 © European Union, 2019 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. 2 Disinformation and propaganda – impact on the functioning of the rule of law in the EU and its Member States ____________________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS 7 LIST OF TABLES 8 LIST OF FIGURES 8 EXECUTIVE SUMMARY 9 INTRODUCTION 15 1. STATE OF PLAY 22 1.1 Summarising definitional challenges 22 1.1.1 Fake news 22 1.1.2 Misinformation and disinformation 24 1.1.3 Propaganda 26 1.1.4 A missing link 27 1.2 Production, distribution and amplification of informational manipulation 28 1.2.1 Origin and nature of manipulative campaigns 28 1.2.2 Digital amplification mechanisms 30 1.2.3 Digital platforms 32 1.2.4 Other distribution mediums 34 1.3 Analysis of disinformation/propaganda campaigns 36 1.3.1 Description and assessment of the recent, main disinformation actions with a formative effect on political opinion or which induced action 36 1.3.2 Strategic political propaganda disseminated through social media sites 39 1.3.3 Disinformation actions in the service of nationalism, populism, hate speech and extremism 44 1.3.4 Summary of events 47 2. IMPACT ON DEMOCRACY, FUNDAMENTAL RIGHTS, THE RULE OF LAW AND THE EU 51 2.1 Changes in the structure of the public sphere accelerating the spread of disinformation and propaganda 52 2.1.1 New features of the online media environment 53 2.1.2 Dissemination strategies 59 2.1.3 The realignment of the media landscape 59 2.2 The distortion of democratic processes 60 2.2.1 The triangular relationship between democracy, the rule of law and fundamental rights 61 2.2.2 The dilemma of speech regulation vs freedom of expression in a flexible online environment 63 2.2.3 Postmodern risk society 64 2.3 Impact on EU democracy and cohesion 65 2.3.1 Militant democracy: The history of an idea 66 2.3.2 Militant democracy and constitutional resilience, and their precautionary nature 67 3 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ 2.3.3 The EU as a tool of militant democracy 69 2.3.4 Enforcement of values in the EU setting 71 2.4 Direct impact on human rights 73 2.4.1 Human dignity, autonomy, privacy and data protection 73 2.4.2 Freedom of expression and the right to information 76 3. EXPLORING THE LIMITS OF EXISTING LEGAL REGULATIONS 80 3.1 The role and responsibility of social media 80 3.1.1 State-of-the-art relating to responsibility of platforms 81 3.1.2 Discussion: the ‘notice-and-takedown’ regime and its critique versus the ‘notice-and-notice’ regime 84 3.1.3 Case law of the ECJ and of the ECtHR relating to the responsibility of intermediary service providers 85 3.1.4 Proposed responsibility 86 3.2 The limits of national and international rules that set a limit to freedom of expression applying to the international environment of social media 90 3.2.1 Assessment of international legal standards for possible ways of tackling disinformation and propaganda 90 3.2.2 Actions of the UN 94 4. DESCRIPTION AND ASSESSMENT OF POLICIES AND MEASURES DEVELOPED AT MEMBER STATE AND EUROPEAN LEVEL TO COUNTER PROPAGANDA AND DISINFORMATION THREATS 96 4.1 The challenge of managing national and EU policies and measures to counter propaganda and disinformation threats 97 4.1.1 State interventions 97 4.2 Co-regulation and state-regulation 103 4.2.1 Co-regulation 103 4.2.2 Self-regulatory mechanisms (market self-correction) 104 4.2.3 Lessons learned 107 4.3 Exploring existing national and European rules relating to election campaigns –how far they could be applied to counter disinformation and propaganda? 107 4.3.1 Rules that could counter disinformation and propaganda 107 4.3.2 Notable examples 108 4.3.3 Latest legislative initiatives in countering disinformation 108 4.3.4 The Communication on securing free and fair European elections 110 4.3.5 Possibility of monitoring campaign expenditures during the EP elections 110 4.4 Promising practices implemented during recent national or local elections, or referenda 111 4.4.1 Introduction 111 4.4.2 Media and information literacy 111 4.4.3 The crisis of journalism and how to overcome it: building a stronger future for journalists 112 4.4.4 Campaign silence 112 4.4.5 Credibility index 113 4 Disinformation and propaganda – impact on the functioning of the rule of law in the EU and its Member States ____________________________________________________________________________________________ 4.4.6 Fact-checking initiatives and media innovation projects 114 4.4.7 Involved parties / institutionalised protection 114 5. FUTURE PROSPECTS 116 5.1 Development of disruptive technologies and their impact on human rights and democracy 116 5.1.1 Overview of technological trends 116 5.1.2 Machine learning and ‘deep fakes’ 116 5.1.3 Advanced demographic analytics 118 5.1.4 Personalised targeting and content automation 119 5.1.5 Virtual reality and other media 119 5.1.6 SEO manipulation and voice-activated search 121 5.1.7 Distributed ledger technologies 121 5.1.8 Algorithmic detection of disinformation 122 5.1.9 Disruptive technologies and their implications for democracy 123 5.2 How are international relations affected by disinformation and propaganda? 125 5.2.1 Interpretation under public international law 125 5.2.2 EU possible actions and responses 126 5.3 Avenues for future research 127 6. CONCLUSIONS 130 6.1 Definitions 131 6.2 Building democratic resilience 131 6.2.1 Defending the constitutional institutions of the democratic state and of the EU 132 6.2.2 Civic education for a democratic Europe 133 6.3 Elections and political campaigns 134 6.3.1 Ethical guidelines 134 6.3.2 Campaign financing 135 6.4 A complex media policy 135 6.4.1 Diversity, pluralism and concentration 136 6.4.2 Transparency and neutrality 137 6.5 Privacy and data protection 137 6.6 Scope of responsibility of social media providers 138 6.7 Criminal rule to prohibit ‘aggressive informational practices’ 139 7. RECOMMENDATIONS 141 7.1 Strengthening democratic resilience 141 7.1.1 Imminent actions relating to the fairness of EP elections 141 7.1.2 Regulation of political and public issue advertising 141 7.1.3 Data protection and privacy: Enforcement and development of the legal regulation 143 7.1.4 Civic education on democratic values, fostering dialogue and community building 143 7.1.5 Mainstreaming science in policy-making 144 5 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ 7.2 Media policy 144 7.2.1 Creating pillars of trust in the media 144 7.2.2 Obligations of platform providers, including social media providers 145 7.2.3 The limits of self-regulation 147 REFERENCES 153 ANNEXES 180 Annex 1. Overview of selected digital platforms 180 Annex 2.
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