Disinformation and Hate Speech: A European Constitutional Perspective

By Giovanni Pitruzzella and Oreste Pollicino

What balance should be struck between freedom of expression, asan essential right and value of any democratic society, and other constitutionalrights when facing falsehood and extreme speech? Howare Europe and legislators around the world reacting to the rise ofonline disinformation and hate speech, in the wake of mounting evidenceof adverse effects on democratic processes? What is the mosteffective approach to address and tackle harmful practices over theInternet, if any? These are some of the pivotal questions that thisbook seeks to explore. The potentially global scale and the unprecedentedvelocity of the dissemination of false and extreme contentraise concerns that are specific to our digital age. It is the Authors'belief that the answers to such questions plunge their roots in theorigins of contemporary constitutionalism, with the paradigm ofthe constitutional traditions of Europe and the United States. Specifically, the right to freedom of expression, its development andsubsequent application to the digital dimension constitute the startingground of the analyses here proposed.

• Language: English
• Publisher: EGEA Spa - Bocconi University Press
• Release date: May 1, 2020
• ISBN: 9788831322072

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References

Introduction

What challenges does the exercise of fundamental rights and freedoms on the Internet raise for constitutional law scholars? What balance should be struck between freedom of expression, as a necessary freedom and value of any democratic society, and other constitutional rights when they meet at a technological crossroads? How are Europe and legislators around the world reacting to the rise of online disinformation, fake news and hate speech, in the wake of mounting evidence of adverse effects on democratic processes? What is the most effective approach to address and tackle harmful practices over the Internet, if any?

These are some of the pivotal questions that this book seeks to explore. Far from disinformation, fake news, and hate speech being novel problems of the 21st century, the potentially global scale of their reach, and the unprecedented speed of their dissemination, raise concerns that are specific to our digital age. As parliaments and courts around the world experiment with the implementation of various measures and remedies to tackle disinformation practices, a tendency to involve a variety of actors emerges clearly as part of any possible solution.

It is the authors’ belief that the answers to these questions have their roots in contemporary constitutionalism, within the paradigm of the constitutional traditions of Europe and the United States. Specifically, the right to freedom of expression, its development and subsequent application to the digital dimension, constitute the starting ground for the analysis.

Against this backdrop, this book is divided into three main chapters, in addition to the fourth chapter, presenting the authors’ conclusions.

In the first chapter, we explore how technological innovation has changed the way information is produced, distributed, and consumed. This change does not merely touch upon the public dimension of pluralistic democracies, but rather, encompasses a structural shift in the combined evolution of liberal democracies and market economies over time.

We also discuss the role of the state in protecting truth as a value belonging to their constitutional foundations.

In the second chapter, we address the crucial questions of contemporary constitutionalism regarding freedom of expression. More specifically, we examine how European courts, on the one hand, and the United States Supreme Court, on the other, protect free speech and the dual right to inform and be informed, and their transition from the world of atoms to the world of bits.

In the third chapter, we examine the current race to regulate disinformation practices across the world. Starting from the EU-level framework, the author subsequently explores a select number of national interventions, exemplary for their approaches in the European and international frameworks, including Germany, Italy, France, the United Kingdom, the Russian Federation, and finally, Singapore and Malaysia.

The book is the result of a joint effort. The concluding remarks were written together, while Giovanni Pitruzzella wrote the first chapter and Oreste Pollicino the second and third chapters.

The authors would like to express their gratitude to Bocconi University Press for supporting this project and to Dott.ssa Laura Somaini, for contributing to the project’s success.

Giovanni Pitruzzella, Oreste Pollicino

Luxembourg/Milan

1Freedom of Information in the Internet Era

The market for information and the freedom of information regime

Internet has changed the way we communicate, posing strong challenges to the freedom of information and the future of democracy.¹

For more than 150 years, modern democracies have depended on the information industry to construct and stimulate discussion in the public sphere, where we see the formation and competition between ideas, information, worldviews, and also criticisms on which public opinion is formed, to then influence electoral choices and public policies.

For all this time, in order for information and culture to reach increasingly broader societies and extended territories, large investments in physical capital were required. These investments were indispensable to organize printing works and the newsrooms where newspapers were produced, to create the telegraph and the telephone network, radio, television, and then cable and satellite TV.

There were significant entry barriers to the information market, due to the massive investments required of those who wished to operate there, and due to the finite nature of the physical resources on which certain forms of communication were based, such as radio and television, that before the advent of digital, encountered an insuperable limit in the frequencies available.

Therefore, constitutions recognized for everyone the right to freely express their thoughts (we find this in Art. 21 of the Italian Constitution, but also in: Art. 5 of the German Basic Law, Art. 20 of the Spanish Constitution, Art. 7 of the Dutch Constitution, Arts. 37 and 38 of the Portuguese Constitution, Art. 40 of the Irish Constitution, and so on), and Art. 10 of the European Convention on Human Rights granted everyone the right to freedom of expression, including freedom of opinion and the freedom to receive and impart information and ideas, in actual fact, only the few who had access to these costly and limited means of communication could actually reach large segments of the public and thus contribute to forming public opinion.

The main problem faced by the constitutionalism of the 1900s, was to guarantee freedom of opinion and information from state intervention, and thus to avoid forms of prior censure of information and ideas, whether direct or indirect.

A problem which remained practically unresolved though, was how to guarantee an effectively pluralistic structure of information. The cited Art. 10 of the European Convention on Human Rights is an expression of this tendency because it is careful to guarantee freedom of information without interference by public authority. Art. 11 of the Charter of Fundamental Rights of the European Union is also based on the same worry, establishing that: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless to frontiers. However, immediately afterwards, it adds that the freedom and pluralism of the media shall be respected. This reflects an evolution that has occurred in the legal system of the Member States and in the jurisprudence of the European Court of Human Rights, and has made pluralism of information one of the pillars of the European constitutional heritage. National constitutional courts and European courts have protected the pluralism of information and have extolled its importance, presenting it as an unfailing feature of a democratic society.

In theory, a divarication has remained between an individualist tendency that stresses the importance of competition between different opinions (that is, the free market of ideas), and a functionalist tendency that stresses the social role of the press and its importance for the formation of public opinion. In practice, the problem that had to be resolved was to find ways to concretely guarantee the pluralism of information. The main path was to safeguard the open and competitive nature of markets, preventing the formation of monopolistic structures or in any event of markets with a particularly high level of concentration. The competition between publishers kept the market of ideas open and pushed information providers, in order to win over the public, to take on the role of watchdogs with respect to power and its actions.

More in particular, as regards television in the analog era, characterized by the scarcity of the spectrum of frequencies available for transmission that limited access to the market to a small number of operators, the guarantee of pluralism regarded principally public radio and television services, which were obliged to ensure space for different political and cultural ideas and orientations. With the advent of the digital era, the physical limit on the use of frequencies essentially disappeared, and therefore the efforts of legislation are now principally aimed at setting antitrust limits on concentrations in the publishing world, setting limits on the market power of publishers, especially in television, and avoiding the creation of dominant positions in advertising, the principal source of funding for the information industry. There is a strict relationship of interdependence between pluralism of information and the open and competitive nature of the market. This tendency, for example, is found in Italian legislation, that has introduced provisions based on which the same provider of content, including through subsidiaries or affiliates, cannot hold authorizations that allow for broadcasting more than 20 percent of total television programs or more than 20 percent of radio programs transmitted on national land frequencies. It has also prohibited the creation of dominant positions in the single markets that make up the integrated communications system and has established that communications operators cannot earn revenues exceeding 20 percent of the total revenues of that integrated system (Art. 43, Legislative Decree No. 177 of July 31, 2005).

In these markets, the publishing industry, with its large organizations of information professionals, selected what and how to publish, put on the screen, enter into communication flows, what hierarchy to assign to information (being on the first page or the tenth page makes quite a difference) principally following the economic logic of the growth of the share, to increase income, especially from advertising.

The implication of the power to decide content and methods of information was the responsibility for the way this power was exercised, that remained conditional upon the respect for other constitutional values, such as those included in the concept of human dignity. Thus the accent was placed on the limits of freedom of information and the right to information, the violation of which was sometimes subject to criminal punishment (the crime of libel), the liability of the editor for what was published, and the professional code of conduct for journalists.

The market, even if regulated, could make it impossible to communicate minority or less conformist ideas, and did not necessarily ensure the satisfaction of other important public interests, such as the promotion of cultural production and the protection of consumers and weaker elements of society (such as minors). As a consequence, in many legal systems, the market of the information industry (with newspapers, radios, and television) was accompanied by a public broadcasting service governed with various different rules and there was pervasive regulation aimed at safeguarding those public interests. The laws of the European Union increased the regulatory burden that weighs on audiovisual media, especially in order to safeguard pluralism and consumers. In this perspective, an important role was played by the directive on audiovisual media services of 2010 (AVMS directive), that also established the fundamental distinction between the production of content and the regulatory framework on electronic communication.

The fourth industrial revolution, triggered by the development of digital technologies, the exponential growth of the capacity of microprocessors, the impressive increase of the capacity to collect, store, and process data, the permanent connection that is created on the web especially after the spread of smartphones and tablets, and the consequent drastic reduction of the costs necessary to communicate, is provoking exponential growth of disruptive innovation.² This does not regard only the economy, business models and markets, but equally affects the production and distribution of information and culture, and ends up transforming the political sphere as well.

Technological innovation has changed the way information is produced, distributed, and used. It is not a simple evolution of the public sphere of pluralistic democracies, but a structural change that regards the way liberal democracies and the market economy have evolved together for approximately two centuries.

How Internet changes the structure of information

To realize how innovation has introduced a radically different way to produce and distribute information, that has little to do with the previous era, we need to focus attention on two crucial changes.

The first is the affirmation of a radically decentralized system of producing information. It is sufficient to have a computer, a tablet, or a smartphone and to be connected to Internet to become producers of information. In the new flows of communication, the single individual takes on an active role, that was unimaginable in the previous era. Anyone can produce information on the web, react to the information entered by others, propose facts, ideas, criticisms, new points of view, photographs, and videos. It is sufficient to create a site, a blog, use social media, send or resend a Tweet, participate in a chat, post a video on YouTube, or post pictures and comments on Instagram.

We have fully entered a new era of information, that Yochai Benkler has defined as the network information economy.³ Its principal traits can be summarized as follows:

•the production of information is radically decentralized, such that each user of the web becomes a potential producer of information;

•the extremely low price paid to use an electronic device, access the network and communicate, places the material means of information and cultural production in the hands of a significant part of the global population, of around two billion people;

•communication flows have an open, global character.

This leads to what Benkler has defined as the wealth of networks, that expands our sphere of freedom and strengthens democratic participation.

Many phenomena that have led to the growth of the freedom we have today would not have been possible without Internet. Not only has each person’s ability to interact with others, express opinions, and gather information been enormously enhanced, but many more restrictions and controls have been created with respect to the actions of the holders of political power. The watchdogs have multiplied, and this is why the holders of power, especially (but not only) in illiberal systems, fear Internet. It is sufficient to think of the role that social networks have had in promoting demonstrations and revolts against oppressive regimes throughout the world, and how the wealth of networks has enormously strengthened the transparency of political and administrative life, approaching the democratic ideal of the government of public power in public.⁴

The second transformation is that to make that enormous mass of information actually usable, the role of those who are able to order it and facilitate the connection between those who produce information and those who want to receive it, becomes essential. Although with very different methods, this function calls into play search engines and social media. They can be defined as the gatekeepers of information in cyberspace,⁵ since they collect producers and users of information, and with their algorithms, they give order to information. The network is open, but only a few subjects (such as Google and Facebook, and also Twitter, YouTube, and Instagram) have the keys to the gates through which information passes.

There is a very limited number of tech companies that have the control to the doors allowing access to the information present on the web. Google has between 70% and 90% of the search market globally. In the U.S., where Bing and Yahoo! have a certain level of market penetration, Google has a share of between 64% and 80%, while in Italy and in the main European countries Google occupies 90% of the online search market, and also has the role of aggregator of news, through the Google News service (an automated news site that collects content from over 50,000 sources, grouping similar articles and showing them in a personalized form based on the interests of each user).

Facebook has a role that is probably even more pronounced in allowing access to information, having reached the astonishing level of 2.5 billion users. In short, there is a group of global tech companies that play the role of intermediaries between those who produce information and those who receive it.

While the web was born with an aim to maximum decentralization and opening, it is also true that the distribution of information to the user is concentrated in only a few Over the Top (OTT) companies, that have accumulated enormous economic power in a world, such as that of the digital economy, in which lock-in mechanisms, network effects, and economies of scale lead to markets with very high concentrations, representing oligopolies or even monopolies.⁶

So in order to understand how freedom of information changes in the Internet era, the notion of the online gatekeeper is fundamental. This can be defined as

a person or entity whose activity is necessary for publishing the opinion of another person or entity on the Web, and which include Internet and blog services providers, social media, search engine providers, entities selling apps, webstores, news portals, news aggregating sites and the content providers of websites who can decide on the publication of comments to individual posts.⁷

These include some that in a more immediate and broader way, intervene on the information that the user receives on the screen: social media and search engines.

The web thus has a dual soul, or a congenital ambiguity. On the one hand, there is maximum decentralization and opening in the production of information, but on the other, there is a strong push for concentration of the services that make this information actually available and useable in the hands of a few multinational companies. All of this has consequences on the concrete structure of freedom of information.

Internet is one of the largest revolutions that has taken place in the history of humanity, and brings enormous benefits to each of us. Humanity derives a benefit from what happens on the web. Yet as with all technological revolutions, the digital revolution and Internet also create new, previously unknown problems. Recognizing the enormous advantages that Internet and the large platforms that operate on it have given everyone, does not mean we have to pretend that problems do not exist.

Consumption of information on Internet and the crisis of traditional media

A growing number of people use Internet, and a growing number of individuals are constantly connected, thanks also to the spread of smartphones (the average number of accesses to Internet with mobile devices has reached over half of the total globally). The number of people who use Internet to have access to news has increased. According to a survey conducted by the Pew Research Center in February 2016, 62% of American adults state that they consume news through social media, and 18% say they do so often. In particular, 66% of Facebook users and 59% of Twitter users get information through social media. The percentages increase if we consider American citizens between 18 and 29 years of age: 81% get information from the web.⁸

While on the one hand, the consumption of information on Internet is growing, on the other, consumption linked to the traditional information industry is decreasing. In particular, newspapers are seeing the most significant losses.

This is a phenomenon common to the whole world, and with regard to Italy, has recently been studied by Vittorio Meloni, who spoke effectively of the twilight of the media.⁹ It is sufficient to think of the overall sales of newspapers, according to the data reported by the cited author, that in the period from 2007 to 2016 went from 5.8 million to 3 million copies a day, a reduction of over 48%. If we consider the top six newspapers in Italy in terms of sales (Corriere della Sera, La Repubblica, La Stampa, Il Messaggero, Il Sole 24 Ore), in the same period of time, the number of daily copies sold barely exceeded 1 million, with the two main papers reaching a maximum of 200,000 copies. The 2016 Censis report on communication confirms this picture: the percentage of people entirely detached from the media and the press reaches 54.6% of the population, to touch 61% among people less than 30 years old.¹⁰ While the press is seeing a strong decline, television is holding on, but it is also subject to