Don't put too much hope in EU legislation against fake news

JOHANNESBURG — Supporting free speech and majority rule is a hallmark of the European Union. But in the fight against fake news, those values are nothing short of obstacles.

That’s according to several media experts and stakeholders, who all told Poynter that recent efforts by the European Union and individual countries to regulate online misinformation will likely fail due to governance issues and legal restrictions in the region.

Over the past couple of years, following high-profile elections in several different countries and the refugee crisis, European regulatory interest in fake news has been particularly high. In October, a German law that targets social media platforms such as Facebook and Twitter took effect. The law requires companies to remove illegal content such as hate speech within 24 hours, punishable by a fine of up to €50 million, while more ambiguous content is granted a seven-day grace period. Legislators in the United Kingdom and Italy have both created public consultations on fake news.

More recently, the European Commission announced two new initiatives to try and address the misinformation phenomenon. By creating a group of experts and a public consultation, the Commission hopes to learn more about the magnitude of the issue, the interests of the different parties involved and some of the best ways to go about fighting fake news. That move comes after more than a year of hand-wringing by the EU about who, how and whether or not to even regulate defamatory content online.

While well intentioned, these attempts at regulating misinformation in Europe are unlikely to succeed in the long term.

“What became very clear in Brussels is that they can’t do anything about fake news,” said Anya Schiffrin, director of the Technology, Media and Communications specialization at Columbia University’s School of International and Public Affairs. “It’s really about enforcing their own hate speech legislation.”

Schiffrin told Poynter at the Global Investigative Journalism Conference in Johannesburg that the main roadblock for regulators hoping to put a stop to fake news is the EU’s own governance problems. That perspective comes from reporting on recent goings-on at the EU, in which she found that, while most people agree fake news is a problem, few share a vision for trying to counter it.

“What I heard in Brussels were really two messages. One is probably lots of countries are going to start putting out more legislation — people expect the U.K. and France to be next,” she said. “Then the other thing is … I really got a sense of all the obstacles, which as you know is the governance problem of the EU, right? You have to have unanimity and it’s really hard to get unanimity.”

In an article for the Columbia Journalism Review, Schiffrin outlines this dilemma using economic terms. On one end of the misinformation regulation debate is what she calls “the supply side,” which believes Facebook and Twitter should limit the content that they promote, while “the demand side” thinks the responsibility lies more with society, and media literacy is the answer. Then there are groups that oppose any government response that broadens censorship.

“I think it’s really hard for the EU to get unanimity and to take action, but we may see some countries make laws on their own,” Schiffrin said.

But aside from governance challenges, another big obstacle for legislating against false online content includes the simple fact that limiting speech in Western Europe is legally difficult. Several countries, such as the U.K. and France — both of which were marred by misinformation during elections this year — have supported free speech for decades both in law and practice, and politicians would be remiss to violate that, Schiffrin reported.

If Europe wants to stand up to malicious online content, it will have to largely forgo fake news.

“I think governments in Europe can’t do anything about fake news,” she said. “It’s going to have to be about enforcing their own hate speech laws online.”

Other stakeholders share Schiffrin’s viewpoint. David Schraven, editor of the nonprofit media group Correctiv, also told Poynter at GIJC that he doubts German efforts to regulate fake news will work due to existing free speech protections. Instead, he advocated for alternative measures.

“I think the law that was introduced has some effects on hate speech, but they’re barely visible,” he said. “You need to have different approaches than legal measures.” 

Despite the pessimism, there are at least a few things the EU could potentially do to hinder the spread of fake news.

Schraven said the Commission could set aside money to support fact-checking organizations across the continent, many of which have small operating budgets. By supporting the work of journalists who are already working to combat misinformation, he said the EU would be taking a step in the right direction while also keeping within their legal bounds. 

That suggestion isn’t new, and while realistic, Schiffrin calls it “piecemeal.” But Schraven said it’s a start, and that it could work in tandem with more economic regulation of Facebook and Google, which he sees as monopolistic platforms.

“I’m sure the EU could do something about that,” Schraven said. “Sometimes you need to tell social platforms that you can’t do this or that.”

In addition to considering content-based regulations of social media companies, the EU has taken aim at limiting their market power in recent months. Several antitrust rulings against Facebook and Google have cited search bias and unequal tax benefits as primary reasons for fining and limiting the reach of American tech companies in the region.

Economic policy could be a lynchpin for regulating tech giants, Schraven said. And while the EU is largely powerless to fight fake news, it could potentially have an impact on the copyright issues that so often accompany it.

Angela Mills Wade, executive director of the European Publishers Council, represents the interests of publishers across the EU. She said that copyright complaints filed by media organizations such as Getty Images and News Corp. have played a role in piquing regulators’ interest in addressing intellectual property violations on big social media platforms — and that plays into recent antitrust rulings.

“The difference between the last Commission and this Commission is the previous Commission was not really willing to look at copyright in terms of managing your rights in the same framework as antitrust. The new Commission and the new Commissioner (Margrethe Vestager) has acknowledged that there is a link,” she said.

“You can’t manage your rights in terms of getting better licensing deals if you’re dealing with a monopolist. I think that’s an important update.”

Europe has taken a decidedly different stance on regulating Facebook, Google and Twitter than the U.S. But where does that leave the EU’s fight against fake news, including its expert group and public consultation to learn more about misinformation? 

Schiffrin said it’s a toss-up — and it doesn’t look good.

“In an ideal world, Europe would lead the way (in legislating against fake news) and America would follow,” she said. “But given the governance problems with the EU, I don’t know if they’re in a position to do that — and given that we have President Trump, I don’t know if we’re in a position to either.”

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