A principle-based approach to regulating #fakenews

Dr Mark Leiser FHEA FRSA
Assistant Professor
eLaw – Center for Law and DigitalTechnologies
Leiden University
Cambridge International LawConference
20 Mar 2019 18h00-19h00 Plenary Session

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

3
UK Security Services: 10M tweets from 700KTwitter accounts that linked to more than 600 misinformation & conspiracy news
outlets

 State obligation not to disseminate propaganda
hostile to neighbours
 Customary law since French Revolution
 Consistently violated, leaving status in confusion
▪ Napoleon (1802): ‘general maxim of international law that states
bound to suppress private propaganda and punish those who purvey
it’
 Technology (radio, telegram)
 Message dissemination across borders in early 20th Century
▪ The ConventionConcerning the Use of Broadcasting in the Cause of
Peace
▪ Bi-LateralTreaties of Friendship and Non-Aggression
▪ Law of Neutrality 4

 The Convention Concerning the Use of
Broadcasting in the Cause of Peace
 Articles 1,3,5 charged states w/ control of broadcast
▪ Public and private
 States sovereignty over the flow of all information
in/out territory
▪ Establishment of controls for licensing facilities
▪ Eliminating clandestine radio stations
▪ “Transmission and reception of information, public or private,
which might directly or indirectly promote the purposes of the
aggressor States, or of governments subservient to them” 5

 Conflict between US/UK marketplace of ideas to correct
inaccuracies w/ USSR approach of direct control of media
 Economic and Social Council sponsored International Conference on
Freedom of Information (Geneva, 1948)
▪ “Measures for counteracting the persistent spreading of demonstrably false or
tendentious reports which confuse the peoples of the world, aggravate
relations between nations, or otherwise interfere with the growth of
international understanding, peace, and security against a Nazi, Fascist, or
Japanese aggression”
 Affirmed FoI as fundamental right, the right to listen
 Only censorship ground was “military security”, not PS or NS 6

 Draft Convention to the GeneralAssembly (1949)
 The right to know and the right to freely seek the truth are inalienable
and fundamental rights of man. Everyone has the right, individually and
collectively to seek, receive and impart information
 Article 2: “The right to seek and transmit information should be assured in
order to enable the public to ascertain facts and appraise events”
 Article 19, ICCPR
 Right to hold opinions w/o interference/FoI/ Qualifications
 Article 26, ICCPR
 Propaganda prohibited for war or advocacy of hatred, incitement to
discrimination, hostility or violence 7

 Demanded an expanded definition
 Propaganda should not be thought of as
purposefully misleading information whose
dissemination intended to harm a nation or
people
 Can also result from technically accurate,
incomplete understanding
 Right of correction is critical to thwart
propaganda
▪ Incorrect statements shall be rectified at the
earliest opportunity by the most effective means 8

 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”;
▪ Definition doesn’t actually 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: definition excludes advertising
 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

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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

 Both interlinked…
 Limited content in traditional press/media
▪ Everything from peer review in academia to editorial judgments in broadcast, press
 Threat to quality/reliability of information in circulation
▪ Matters of public interest/infosphere
 Acted to ensure some qualitative boundaries, especially on statements of fact
 Media UK: self-regulation/co-regulation
 Independent Press Standards Organization; IMPRESS: statutory regulation through Ofcom and Communications Act 2003
▪ System ensures “best-attempt” in ensuring accuracy; with requirements to correct “inaccuracy”
▪ Media Deal: Submit to legal frameworks for media duties and responsibility; gain highest protection under Article X
 Platforms : self-regulatory
 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 (algorithmic recommendations, choice architecture)

 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
 Political Advertising (paid for advertisements delivered to custom
audiences that link to a #fakenews website or a political nature)
 Hybrid Speech:
 Machine speech (bots, botnets, automation, machine-learning)
▪ Applies to commercial and political speech
13

 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.”
 Nothing new?
 Old: First Statute ofWestminster (1275)
▪ “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” –
 New: Section 106, Representation of the PeoplesAct 1983:
 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
▪ 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 LaurenceTaylor GBP 4,000 for failing to include proper identification details on newspaper advertisement he
placed during regulated period (15 April to 23 June) for EU referendum
 Ofcom (UK’s Broadcast Regulator) and the Advertisement Standards Authority (ASA) cannot stop online advertising
during campaigns because do not have the power to control what happens online
 Electoral Commission

 Does fake news speech
 Does fake news engageArticle 10(1) ECHR protection?
 Who is responsible for regulating fake news?
 Are platforms, providing means of transport for speech bits, without
exercising any editing function, simply exercising preferences exhibited by its
users?
 Can speech regulation be compatible with citizen empowerment?
 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”
▪ Bots as extension of the user/machine learning speech
15

 Methods-based approach
 Data Protection (psychometric/behavioural core, custom, targeted advertising)
 Free Expression
▪ Regulation of Commercial Speech
▪ PoliticalAdvertising 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,GoogleAdSense)
 Subsidiarity
 Human Empowerment 16

 1st Amendment, 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
17

 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 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
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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…”
20

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 Effective regulation and Free Expression not incompatible
 Enhanced protection: 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
 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
 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)

 Article 10 impose positive duty on states:
 “To ensure, firstly, that the public has access through television and radio to impartial
and accurate information and a range of opinion and comment, reflecting inter alia the
diversity of political outlook within the country, and secondly, that journalists and
other professionals working in the audio-visual media are not prevented from
imparting this information and comment” - Manole v Maldova, Decision of 13 July 2010
at Para 100.
 Appropriate regulatory framework to ensure journalists’ freedom of expression on the
Internet.
 Margin of Appreciation
▪ Legitimizes general media duties to relay accurate information
 Obligation restricted to broadcast media, but consider structural decline of traditional,
legacy media, this principle could be applied to platforms 22

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 Demonetization of #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 w/ 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

 Speech protection, share restriction
 Freedom of speech, not freedom to share
▪ WhatsApp sharing restrictions
▪ HashingTechnology, Article flagging, Choice Architecture
▪ Default newsfeeds
 Right to Data Portability (Article 20)
 Regulator advance 3rd party analysis of media usage
 Inform users of corrections via data analysis
 Empowering users w/ info about content
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25
 Problem with terminology?
 Do social media platforms matter anymore?
 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 #fakenews

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