This is a repository copy of ‘“Fake news”: reconsidering the value of untruthful expression in the face of regulatory uncertainty’. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/141447/ Version: Accepted Version Article: Katsirea, I. orcid.org/0000-0003-4659-5292 (2019) ‘“Fake news”: reconsidering the value of untruthful expression in the face of regulatory uncertainty’. The Journal of Media Law, 10 (2). pp. 159-188. ISSN 1757-7632 https://doi.org/10.1080/17577632.2019.1573569 This is an Accepted Manuscript of an article published by Taylor & Francis in Journal of Media Law on 30/01/2019, available online: http://www.tandfonline.com/10.1080/17577632.2019.1573569 Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ 1 ‘“Fake news”: Reconsidering the value of untruthful expression in the face of regulatory uncertainty’ DR. IRINI KATSIREA Centre for Freedom of the Media, Department of Journalism Studies, University of Sheffield E-mail:[email protected]. 2 Abstract: Against the backdrop of the regulatory furore over ‘fake news’, this article examines the protection that is afforded to untruthful expression by the European Court of Human Rights and by national courts in Germany, the UK and the US. It argues that the suppression of ‘fake news’ in the face of uncertainty over the contours of this highly politicised term and of the evidentiary vacuum as to the harm posed, may run counter to constitutional guarantees of free speech. Regulatory interventions seeking to curb the flow of ‘fake news’, which is not per se illegal, require careful consideration lest they should empower governments or unaccountable technology corporations without editorial culture to become the arbiters of truth. Keywords: Fake news, freedom of expression, Germany, United Kingdom, United States 3 Introduction The phenomenon of ‘fake news’, which came to the fore as a result of Buzzfeed’s revelations about the commercial exploitation of fabricated news stories on Facebook, and allegations of Russian interference in the US, French and German elections by way of propaganda campaigns, has gained increased currency in recent times and sparked fears over the threat posed to democracy.1 In response to this perceived threat, EU Member States are in the process of drawing their strategy in this undeclared media war. Germany adopted a new law to give teeth to its existing criminal law sanctions by imposing heavy fines against social media platforms that fail to speedily delete fake reports and hate speech.2 The UK has been more cautious in its endeavour to come to grips with this phenomenon. Differently from Germany, there has been no legislative initiative with the 1 C. Silvermann and D. Alexander, ‘How teens in the Balkans are duping Trump supporters with fake news’ <https://www.buzzfeed.com/craigsilverman/how-macedonia-became-a- global-hub-for-pro-trump- misinfo?utm_term=.abwQX0Y5JL#.psmLE4WAZp>. 2 For other European initiatives such as the French ‘fake news’ bills of October 2018, see LSE Commission on Truth, Trust and Technology, ‘Tackling the information crisis: A policy framework for media system resilience’, November 2018, 51 <http://www.lse.ac.uk/law/news/2018/truth-trust- technology>. 4 aim of combatting ‘fake news’ in the UK so far. The House of Commons Digital, Culture, Media and Sport Committee has invited submissions to a Fake News Inquiry, which have fed into an interim report, while a more substantial report is expected by the end of 2018. Meanwhile, social media platforms and search engines, in an attempt to keep stricter regulation at bay, have responded by cooperating with fact-checking organisations and by reducing the financial incentives for the production of fake news content. It is a moot point whether such initiatives are capable of tackling the challenge of ‘fake news’. Some argue that the ‘fake news’ phenomenon is intrinsic to social media’s and, in particular, Facebook’s business model, so that they have little interest in meaningfully addressing it.3 Others are more hesitant to discredit social media’s attempts at self-regulation.4 They agree though with well-established research on the so-called ‘illusory truth effect’, which suggests that fact-checking is likely to further entrench erroneously held beliefs rather than eradicate them.5 3 P. Bernal, ‘Fakebook: why Facebook makes the fake news problem inevitable’ (2018) 69 (4) Northern Ireland Legal Quarterly 513. 4 B. Holznagel, ‘Phänomen “Fake News” – Was ist zu tun? Ausmaß und Durchschlagskraft von Desinformationskampagnen’ (2018) 1 MultiMedia und Recht 18. 5 G. Pennycook, T. D. Cannon, D.G. Rand, ‘Prior exposure increases perceived accuracy of fake news’ (2018) 147 (12) Journal of Experimental 5 The other side of the coin is the troubling use of the term ‘fake news’ by the US President but also by nationalist, far-right parties such as the German parties Alternative for Germany (AfD) and Patriotic Europeans against the Islamisation of the West (Pegida) for political advantage. However, the term ‘fake news’, translated into German as ‘Lügenpresse’, as well as the fears associated therewith and the perception that their spread needs to be put to a halt, have a long history. The Trump administration and nationalist parties who lambast the mainstream media in their tweets, election campaigns and demonstrations join a long tradition of press victimisation. In the First World War, the notion of ‘Lügenpresse’ was enlisted in the effort to discredit reporting by the enemy. Before the NS party’s seizure of power, this concept was weaponised against the ‘unpatriotic’ press of the Weimar Republic, which failed to stand up to the demeaning Versailles Treaty; later it was used against foreign media, not least by the chief Nazi propagandist Joseph Goebbels.6 These Psychology 1865; P. Schneiders, ‘Gegen Fake News ist niemand immun’, < http://www.ard.de/home/ard/Was_die_Wissenschaft_zu_Fake_News_sagt/3 733254/index.html?articleSectionIndex=0>. 6 R. Blasius, ‘Unwort des Jahres: Von der Journaille zur Lügenpresse’ Frankfurter Allgemeine Zeitung (Frankfurt am Main, 13 January 2015) <http://www.faz.net/aktuell/gesellschaft/unwort-des-jahres-eine-kleine- geschichte-der-luegenpresse-13367848.html>; see T. McGonagle, ‘“Fake news”: False fears or real concerns?’ (2017) 35 (4) Netherlands Quarterly of Human Rights 203, 205 et seq for historic examples of ‘fake news’. 6 eerie comparisons suggest that the misuse of the term ‘fake news’ is perennial, and that it should be resisted together with all attempts to stifle purveyors of misinformation. The history of this concept as a tool to crack down on dissent is but one reason for scepticism. The vagueness, highly politicised nature and possible inadequacy of the term ‘fake news’ to capture the many facets of our complex information ecosystem might be another.7 This article will begin by exploring the meaning of ‘fake news’ so as to establish a working definition that would avoid the pitfalls of its recent distortions. The Culture, Media and Sport Committee’s interim report recommends that the term be rejected and replaced by a shared definition of the terms ‘misinformation’ and ‘disinformation’.8 While these terms are less politically loaded than the term ‘fake news’, one needs to pay heed to the 7 C. Wardle, H. Derakhshan, ‘Information disorder: Toward an interdisciplinary framework for research and policymaking’, Council of Europe report DGI (2017) 09, 27 September 2017 <https://rm.coe.int/information-disorder-toward-an-interdisciplinary- framework-for-researc/168076277c>; European Association for Viewers Interests, ‘Infographic: Beyond Fake News – Ten Types of Misleading News – Nine Languages’ <https://eavi.eu/beyond-fake-news-10-types-misleading- info/>. 8 House of Commons Digital, Culture, Media and Sport Committee, ‘Disinformation and “Fake News”: Interim Report’, HC 363, 29 July 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/363/36 3.pdf. 7 fact that the term ‘fake news’ is likely here to stay as ‘part of the vernacular that helps people express their frustration with the media environment’.9 It is therefore useful to explore its contours further. Next, this article will discuss whether ‘fake news’ pose a threat that would justify their regulation. The answer to this question is by no means clear given that regulatory and legal solutions are debated largely in a vacuum of evidence as to the necessity of their adoption. Lastly, our attention will turn to the single most important reason why our efforts to sanitise our news ecosystem might be ill-conceived. This would be the case if the spreading of untruthful but not illegal information, even of such that is outright fabricated, with intent to deceive, was protected under the right to freedom of expression. It needs to be borne in mind that ‘fake news’ are not automatically illegal if they do not violate laws on privacy, defamation, hate speech, misleading advertising etc. This section will discuss, first, the verification obligations that the European Court of Human Rights imposes on the media and the extent to which such obligations extend to new media actors. Secondly, it will consider the level of protection, which should be afforded to ‘fake news’ in the hierarchy of 9 R.