"A principle based approach to regulating fake news"

Dr Mark Leiser FHEA FRSA
Assistant Professor
eLaw – Center for Law and DigitalTechnologies
Leiden University
University of Malta
21 Feb 18h30-19h30 Public lecture

I. Researching the problem
II. Defining Fake News
III. Analyse the methods
IV.The role of human rights
V.Principle-based approach
VI.Future Concerns

 Can we come up with a working definition?
 Tambini: define ‘fake news’ by identifying the beneficiaries:
▪ New populists: undermine legitimate opposition, resist fourth estate accountability.
▪ Historical losers: Political actors claim that result only happened due to misinformation
▪ Some say those on the wrong end of an outcome say results are not legitimate.
▪ Legacy media: “mainstream media” want to discredit ‘wisdom of crowds’; aim for a return to
trusted news brands
 D’Ancona: “the deliberate presentation of falsehood as fact”; Leiser: def doesn’t include
news
 EC’s High Level Group on fake news and online disinformation: drops ‘fake news’ and
refers to ‘online manipulation’
▪ Micro-targeted, managed-content display presented as most relevant for individual; is determined
in order to maximise revenue for the platform; Leiser: focuses on the system, too broad.
Leiser: “Deceptive form of authentic-looking media, publishing or advertising that seeks
to take advantage of our cognitive biases and errors in judgement to advance a
commercial or political agenda.Content creator does not submit to media regulation

 Threat to quality/reliability of information in circulation
 Matters of public interest/infosphere
 Limited content in traditional press/media
▪ Everything from peer review in academia to editorial judgments in broadcast, press
 Acted to ensure some qualitative boundaries, especially on statements of fact
 Media vs Platforms:
 Media and Platforms interlinked but…
▪ UK: self-regulation via Independent Press StandardsOrganization; IMPRESS: statutory regulation through Ofcom and Communications Act 2003.
▪ System ensures “best-attempt” in ensuring accuracy; with requirements to correct “inaccuracy”
▪ “Expression Paradox”: Submit to legal frameworks for media duties, responsibility; gain highest protection underArticle X
 Platforms:
▪ Business models designed to distribute stories after qualitative assessment about a news article based on popularity(within certain groups)
▪ Not accuracy/based on fact or evidence or logical reasoning
 Limited attention spans/overload prevent discriminating between messages at:
▪ Individual level
▪ System level

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 Page Breakdown
 Commercial
Speech,
masquerading as
political speech
▪ Domain name
registration
▪ Trademark
Infringement
▪ Copyright
Infringement
 Regulatory Breakdown
 Consumer
Protection
 Advertising
 Criminal Fraud

 Organic introduction by users into FB eco-
system
 PsychometricTesting &TargetedAdvertising
 Sponsored advertisements and ‘dark posts’
 Automated and algorithmic dissemination
 Popular onTwitter via bots simple, ML using
botnets
 Dissemination via Facebook Group/Pages
 Custom audiences,A/B testing
 Deep Fakes &WhatsApp
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50-60% of all traffic onTwitter is estimated to be bots
15% of all US twitter accounts are actually bots

 Political Speech
 Organic, holistic, individualized
▪ Users “sharing user generated content” via platforms like Facebook andTwitter
 Commercial Speech
 Dark Posts (psychometric profiling and targeted advertising)
 #FakeNews sites powered by GoogleAdSense and paid-for advertising
 PoliticalAdvertising (paid for advertisements delivered to custom audiences
that link to a #fakenews website or a political nature)
 Hybrid Speech
 Commercial Speech masquerading as political speech
 Is it speech at all?
 Machine speech (bots, botnets, automation, machine-learning)
▪ Applies to commercial and political speech
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 Do human rights protect those wishing to disseminate all methods of
disseminating fake news?
 Does Article 10(1) protect the methods associated with the
 Applying the principle of subsidiarity, who is responsible for regulating fake news?
▪ At system level?
▪ At individual level?
 Are platforms, providing means of transport for speech bits, without exercising any
editing function, simply exercising preferences exhibited by its users?
▪ Can "algorithmic outputs" claim protection?
▪ I.e. Should non-human or “automated transmissions” be treated as speech?
▪ “Fact that algorithm is involved does not mean that a machine is doing the talking”
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 Historical regulation of fake news
▪ Old: “None be so hardy to tell or publish any false news or tales, whereby discord, or occasion oof discord or slander
may grow between the King and his people, or the great men of the Realm” – First Statute of Westminster (1275)
▪ New: Criminal offence to publish a false statement about character or conduct of an election candidate in order to
(negatively) affect how many votes that person will/might get
▪ Section 106, Representation of the PeoplesAct 1983:
▪ Law is not specifically or solely aimed at the press/media, and usually involves a claim against opposition
candidate
▪ Offence not to include an “imprint” (identification) on election material printed in a newspaper or periodical.
 Electoral Commission fined Mr LaurenceTaylorGBP 4,000 for failing to include the proper
identification details on advertisement he placed during the regulated period (15 April to 23 June) for
the EU referendum
 Ofcom (UK’s Broadcast Regulator) and the Advertisement Standards Agency (ASA)
cannot stop online advertising during campaigns because outwith remit
 Electoral Commission (DCMS – “not fit for purpose”

 Methods-based approach
 Data Protection
▪ Regulates the system of advertising processes used on social media
 Free Expression
▪ Regulation of Commercial Speech
▪ Political Advertising regulation requires financial transparency
▪ Domain Name Registration (Registrar and Registries including contractual terms and conditions)
▪ Regulation of Political Speech
▪ Complex and controversial, but not impossible
▪ Criminal Law: Defamation (where applicable) and Fraud
 FinancialTransparency
▪ Psychometric & targeted advertising, Google AdSense)
 Principle of subsidiarity - In areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the
objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local
level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
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 1st Amendment to the US Constitution
 Majoritarian beliefs in the marketplace of ideas
 Article 10 ECHR –Qualified Right to free expression
 Objective approach judges speech on contribution to
society & protects speech if and insofar it contributes to
finding the best ideas in the marketplace
 Article 19 of the International Covenant on Civil and Political Rights
(ICCPR)
 Article 11 of the Charter of Fundamental Rights of the EU (CFR)
 Article 20 ICCPR on propaganda for war & forms of hatred that
constitutes an incitement to discrimination, hostility, or violence
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 Article 10(1) “Everyone has the right to free expression”
 “Freedom of expression constitutes essential foundation of a democratic society”
 “Free elections and free expression, particularly freedom of political debate, together
form the bedrock of any democratic system”
▪ Lingens v Austria (app. No 9815/82); Stensaas v Norway (app. No 21980/93); Axel Springer v Germany
 ‘Expression Deal’: “Media given editorial responsibility for content ensuring
responsible, quality controls in exchange for significant freedom when reporting
matters of public concern”
 Article 10(2) Contextual “duties and responsibilities”
 MS permitted to legislate, subject to proportional “formalities, conditions, restrictions
or penalties are as prescribed by law and are necessary in a democratic society”
▪ “Particularly important in the period preceding an election that opinions and information of all kinds
are permitted to circulate freely” – Bowman v UK, Para. 40 .18

 Article 10(1) protects the act of deceptive speech, while 10(2)
contextualizes regulation of speech actors
 Facilitates just outcomes in the face of competing general interests
 Margin of Appreciation to regulate actors when “prescribed by law”
▪ Inflammatory racist or false terrorist threats
▪ Curtailment of private rights
▪ Harm to consumers through misleading advertising
▪ Risk of false conviction
 Nb defamatory speech is not protected speech
 Freedom of speech, not freedom to reach
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 Four Characteristics associated with speech
▪ Personhood
▪ “Humanness”
▪ Cognizance
▪ Expressiveness
 US approach has shifted from humanness towards protecting rights of entities w/ personhood
 Is machine speech output in scope of 1st Amendment?
 Full arsenal of rules, principles, standards, distinctions, presumptions, tools, factors, tests becomes
available to determine whether particular speech will be protected
 Protection flows alongside natural technological developments
 Video games and search engine results protected under 1st Amendment
▪ ACLU v Reno 521 US 844 (1997); Zhang v Baidu.Com Inc 10 F. Supp 3d 433
 Wu: “Like a book, canvas or pamphlet, the program is the medium the author uses to communicate his
ideas to the world…”
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 Effective regulation and Free Expression not incompatible
 Enhanced protection under Article 10 ECHR, Article 11 EU’s ChFR
 Qualifications: Interference is necessary in a democratic society. ... pressing social need
must accord with the requirements of a democratic society.
 Simple choices about content amplification can suppress minority speech
 Perspective matters: “Ofcom: only the young use the net”.
 Younger people – Internet dominant source of news;
 Older people (more likely to vote) - Still get their news fromTV.
 Regulating machine speech (bots, botnets, scripts, automation)
 Interagency cooperation including organizations responsible for the state’s cybersecurity to
develop frameworks for preventing, disrupting and investigation of the propagation of
computational propaganda and disinformation
▪ 10M tweets from 700KTwitter accounts that linked to more than 600 misinformation &
conspiracy news outlets
 Regulating political advertising during sensitive periods
 Social media analysis and network mapping to model the creator’s intention, the potential
responsibility for the intentional (or reckless) facilitation of deception by the propagator.
“To place certain restrictions, of a
type which would not usually be
acceptable, on freedom of
expression” in order to secure the
“free expression of the opinion of
the people in the choice of the
legislature” –
Bowman v the United Kingdom
App no 24839/94 (ECtHR, 19
February 1998)

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 Demonetize #fakenews websites
 ‘Follow the money’ approach to disrupting economic incentives
▪ Technical measures that preventGoogle Ads visibility on #fakenews websites
 Note: Platforms already decide what content is permitted
▪ Google/FB policies state they will restrict ad serving on websites that misrepresent content or use “deceptive and
misleading content”
 Transparency for Advertising
 Public repositories for political advertisements
▪ Metadata with a full documentary account of the ad, who purchased it, the associated landing page,
targeting campaign, etc.
▪ All metadata associated with a political advertisement should be downloadable in machine readable
language, stimulating economic growth by creating markets for competing campaign
 Prescribed Periods
▪ Licensing regime implemented by Election Regulator in conjunction with the security services, inter-
agency cooperation
▪ Electoral regulators to mandate platforms like Google AdSense hold all advertising revenue during any
sensitive periods to allow content to be reviewed and critiqued by stakeholders, with advertising
revenue withheld for violating Codes of Conduct
With a combined market share of
63.1% of the US digital ad
market, Facebook’s Audience
Network and Google’s AdSense
play a major role in deciding
what content will or will not be
monetized

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 Protection of free expression, access to information, elections free from interference
 Committee for Standards in Public Life: “seek to agree in association with the advertising industry, a code of
best practice for political advertising in non-broadcast media” Ignored…
Codes of Best
Practice
Platforms
Codes of
Conduct
Political Parties,
Advertisers
Data Analytics, etc.
Guidance for micro, small &
medium-sized
stakeholders.
Ethics
CoBP ensure procedural
legitimacy, regulatory
oversight, complaint
mechanisms, etc.
Transparency
Accountability
Fairness

 Protect the marketplace of ideas from emotional triggers
 Enhanced prescribed periods for democratic events
 Leiser: “Freedom of Speech, not freedom to reach”
 Remove the share button
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 Problem with terminology?
 Should we move away from using the term, #FakeNews, and go back to deceptive content?

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Thank you for your attention!
Or contact me later: m.r.leiser@law.leidenuniv.nl
Twitter: @mleiser

"A principle based approach to regulating fake news"

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