When It Comes to Fake News, Don't Imitate the USA
"Metaphors (not only) in Law should be handled with care", Oreste Pollicino warns. He refers to the prospect of transferring the metaphor of the free marketplace of ideas from the economic domain to the information domain in Europe, as has happened in the United States. In Europe, though, the legal paradigm and the set of values are rather different."We should be even more cautious when dealing with online information because of the spread of fake news and because of the environment characterized by the prevalence of monopolies and oligopolies".
As a professor of Information Technology law, Oreste Pollicino was part of the high-level group of experts set up by the European Commission to advise on policy initiatives to counter fake news. In Truth and Deception Across the Atlantic: A Roadmap of Disinformation in the US and Europe, forthcoming in the Italian Journal of Public Law, professor Pollicino and Elettra Bietti propose to discard the word "fake news" and replace it with "disinformation". It is defined by three factors: the content's factual truth; the intent associated with the content's generation and sharing; and the harm caused into the public sphere.
"The First Amendment to the United States Constitution addresses the active dimension of speech and protects the marketplace of ideas, thus shielding the press and other speakers from liability for the spread of disinformation. Article 10 of the European Convention on Human Rights addresses the passive dimension of speech and highlights the potential social dimension of disinformation since it affects the right to be informed in a truthful or verifiable manner".
The role of digital platforms like YouTube and Facebook is critical. The European Commission looked for ways to make them aware of the issue without censoring them. In 2018, it granted them the chance to build codes of conduct. "After one year, if self-regulation fails, the creation of a stricter regulation is foreseeable, if a legal basis is found in European Treaties".
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