The dissemination of fake news by online is a threat to democracy. Should online platforms therefore be subject to regulatory control?
Professional journalism plays an important role in our democratic societies by acting as a public watchdog over the concentrations of power, ensuring the accountability of these institutions, and informing us of important occurrences. However, fabrication, fakery and falsehood have been a part of journalism since the first journalists put quill to parchment. Therefore, statutory laws and regulatory bodies aim to ensure journalism is impartial and accurate. However, journalism today is experiencing fundamental transformation due to technological advancements; consequently, the public now acquires news through digital platforms as well as traditional sources. A 2016 survey found that 35% of people in the UK now use social media to access the news, for those under 35 years old, 41% used Facebook and 20% used Twitter as a weekly source. Online platforms have created more news sources to larger audiences, but this has also opened floodgates of inaccurate information pouring into our news feeds by deskilled journalists. The phenomena of citizen journalism and ‘we media’ have accelerated the pattern of random and instantaneous digital dissemination of information. These activities have contributed to blurring the lines between truth and falsehood, and created fake news, which puts professional journalism under pressure.
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On 30th January 2017, The Culture, Media and Sport Committee launched an inquiry into fake news and called for submissions to be made suggesting ways to respond to the phenomenon of fake news. Various regulatory bodies, and institutions including the LSE Media policy project have shed some light on this topic. Fake news can be best understood as ‘the misinformation (the inadvertent sharing of false information) and disinformation (the deliberate creation and sharing of information known to be false)’. These types of content are being created as a result of: poor journalism, parody, provocation, passion, partisanship, profit, political influence and propaganda. They are published on news sites and listed by digital intermediaries (groups consisting of news aggregators, social networks, search engines, and digital application stores)  causing fake news to spread across the globe. The concerning issue is the channels through which most people gain their news from are currently subject to no statutory laws, editorial guidelines nor regulation by organizations such as the Independent Press Standards Organisation (IPSO). However, there is a wealth of evidence supporting the scale, dissemination and effects of fake news. The debate has gained significant prominence since the 2016 US presidential elections.
Statutory regulation of digital intermediaries
A YouGov survey commissioned by Channel 4 found that only 4% of people were able to correctly identify fake news. This inability is concerning as many people, especially the young, acquire knowledge, and form opinions, by what they see and read on the internet. Statutory regulation would therefore be the most direct response to the challenge of fake news; under this approach digital intermediaries would be treated as publishers even if they have not played an active part in the commissioning or presentation of such content. Such an approach may be necessary as a study analysing how social media can improve citizens’ knowledge of political preferences proved that there is a remarkable ability for social media to forecast election results. This proved to be the case during the EU referendum, where 7% of those that voted for Brexit regretted their choice later.  News reporters found voters claiming they voted leave because they believed lies or false promises; it is most likely that the sources of these false statements were from unregulated online platforms. Therefore, enforcing legislation on digital intermediaries would hold these platforms directly accountable, ensuring they take their civic duty seriously.
Fake news is also a concern on Twitter where ‘Twitter bombs’ (the act of sending unsolicited replies to specific users via Twitter in order to get them to pay attention to one’s cause), are being launched within days of the elections. Despite Twitter’s attempts to shut them down it has been ineffective as these users create fake accounts, fake replies and fake grassroots movements. These tweets target deskilled-journalists online, pressurising some to moderate their views. Democracy is threatened if people’s views are influenced by false statements in the guise of news. Aside from political motivations, the spreading of fake news was also noted by users retweeting fake images of the Hurricane Sandy disaster, and pictures of the of Osama Bin Laden’s dead body. Such action usually goes unnoticed unless someone has detected and reported the issue. This response is different for newspapers because they are subject to the IPSO, or a similar body. Journalists employed by regulated publishers are required to uphold the values enforced in the Editors’ code of practice. This aims to ensure accuracy of information and a standard of professional journalism is maintained . However, digital intermediaries are not held accountable by any body, like the IPSO, even though they have a large audience that is affected by fabricated stories. Therefore, it is crucial that these organisations take some responsibility in resolving this issue. Without implementing any strict regulatory initiatives such incidences would occur daily and remain unquestioned, leaving users to believe false information. Statutory regulation would therefore fill the gap in the law, bringing clarity and holding digital intermediaries responsible for their part in disseminating fake news.
There is no doubt that intermediaries play a dominant role in the global public sphere, but perhaps we need to address the question of whether we should continue to consider them as mere intermediaries. Unlike news providers, intermediaries have no investment in journalism and are therefore more likely to filter out news. This limits users’ understanding of the world, as they are insulated from opposing views. The risk is that these ‘filter bubbles’ (restrictions of a users perspective) will promote misperceptions by hiding the truth, which supports the economic models of intermediaries because digital programmatic advertising follows users through their ‘clicks’, ‘shares’ and ‘likes’. By learning from the past actions of a user, news feeds will only show similar material in their next use. Requiring digital intermediaries to change their approach by bursting this ‘filter bubble’ would not be in their commercial interests, as the bubble’s content is what keeps users engaged. Statutory regulation would therefore enforce strict rules on how intermediaries should enforce mechanisms to detect and filter fake news instead of opposing views.
Moreover, ensuring impartiality and accuracy is important especially during election time. ‘A BuzzFeed News analysis found that top fake election news stories generated more total engagement on Facebook than top election stories from 19 major news outlets combined’. This imbalance illustrates the significant role digital intermediaries play in today’s society, and therefore it is particularly concerning if their news content is fake. If newspapers and broadcasting media organisations are obliged to follow strict guidelines on impartiality and accuracy, then why should it be any different for online platforms? For example, Section 319 of the Communications Act 2003 requires TV and radio broadcasters to comply with the standard objectives set by Ofcom. This includes, reporting ‘with due accuracy’ and not ‘misleading’; furthermore, Parliament ‘requires Ofcom to develop rules with respect to broadcasters’ wider editorial coverage of elections’. Similar regulations on intermediaries would ensure information is not personalized to a user’s preferences, thus maintaining impartiality and accuracy, whilst avoiding the risk of disseminating fake news to users.
Statutory regulation of online news providers
The dissemination of fake news by online news providers has proven to be a great concern as anonymous individuals are inventing fake news for the purpose of generating clicks and earning revenue. Such behavior has been identified in Macedonia, where teenagers were found to be making money by creating fake news on US presidential candidates and promoting it via social media. If statutory regulation is placed on digital intermediaries, then the same could be done for online news providers, as the same news from online news providers will be shared via digital intermediaries. This was proven to be the case as various US sites claimed to be exposing ‘Russian propaganda’, was shared via other online platforms which influenced voter behavior in the US elections. Examples such as as this suggest ‘misleading, biased propaganda’ is also part of the fake news phenomenon. It is therefore important to set statutory regulations for both, as this type of de-skilled citizen journalism is a threat to democracy especially because people’s views are being influenced by biased and inaccurate information.
Furthermore, news outlets that only have an online presence, such as AOL news, Vice, and Huffington Post, are not subject to any regulatory controls as they are not members of regulatory bodies like IPSO; even though they are subject to some statutory control such as defamation, copyright and data protection laws, control is not the same as the additional regulatory standards most UK press (with a physical and online presence) comply to. Without belonging to any recognised regulator, publishers may have to pay exemplary damages under the Crime and Courts Act for defamation or other relevant claims; therefore, it would be in the interests of online publishers to join a recognized regulatory body.
Interestingly, Wikipedia recently banned Daily Mail as an ‘unreliable’ source and excluded it as a source of reference. Wikipedia claimed the newspaper to have a ‘reputation for poor fact checking and sensationalism’. These claimed characteristics are another concern for UK journalism, as IPSO regulates Daily Mail (Associated Newspapers Limited)  yet they are still being labelled as an unreliable source. This indicates the ineffectiveness of IPSO as it failed to ensure the credibility of a publisher they regulate. Such failures generate an inclination towards statutory regulation of online news providers as regulatory bodies are not enough, to ensure that newspapers report accurately and without exaggeration. Not only do such flaws lose the public’s trust in professional journalism’ but they also create a society that is vulnerable to fake news. There is also no evidence to suggest that the levels of accuracy are rising or that the self-regulatory bodies set up by the major publishers, and IPSO, are having any identifiable positive effect. Hence, it may be necessary to set up statutory regulations of online news providers which will create a more direct and stringent approach to tackling fake news.
The Leveson Report suggested that such statutory regulation would be necessary to underpin the process of recognition, and reinforce the importance of statutes guaranteeing press freedom. However, three years on from the publication of the Leveson Report, the landscape of press regulation is still fragmented and confused, and it may therefore be necessary to re-consider these suggestions. The implementation of statutory regulation, combined with independent regulatory bodies, should be extended to intermediaries and online news providers. Such a framework is an essential stepping stone towards a regulatory regime that is entirely fit for purpose in this new era. The negative issues with this initiative would include costs, and whether a consensus by major publishers and online platforms can be formed.
Self-regulation by digital intermediaries
An alternative to statutory regulations would be to enforce a self-regulatory system for digital intermediaries which would allow them to have significant control in filtering fake news according to methods they believe are most effective. Mark Zuckerberg, although first dismissing the idea that fake news influenced the US election, later acknowledged the role of social media in helping promote fake news, and proposed ways in which Facebook could help resolve this issue. Actions include taking an approach that ‘will focus less on banning misinformation, and more on surfacing additional perspectives and information, including that fact checkers dispute an item’s accuracy’. Other ways Facebook could reduce fake news without resorting to censorship include; nudging, crowdsourcing and reducing the algorithmic bias. Nudging involves monitoring what users are writing in a new post; if the content includes words they may regret posting, it notifies them. Crowdsourcing allows users to evaluate news sources by indicating ratings. Lastly, the most important solution is to reduce the algorithmic bias. This involves trying to diminish filter bubbles that create an “echo chamber”, where similar ideas bounce around endlessly which is a problem when the echo chamber blocks out corrective or fact-checking information.
Although, some digital intermediaries have already taken steps to tackle the issue of fake news, it would be ineffective to give them sole responsibility. More useful would be to establish a governance mechanism, such as an independent board, that could check whether the algorithms accord with acceptable principles. This view is supported by the Trust Project, which suggests that algorithms alone will struggle to root out fake news, unless they can quantify indicators of trust elements, which can help set a ‘kitemark’ for trustworthiness. This suggestion includes being able to distinguish the intentions behind the news, and whether it is genuine, or inaccurate reporting. Therefore, remedies based solely on technological fixes or market-driven corrections will not, on their own, address these problems. Additionally, judgments of this kind need to be carefully reviewed hence, an independent body should be established to perform this role. This approach will ensure tech platforms maintain transparency in the work they carry out to tackle this public issue.
Firstly, there is no guarantee that only one country’s statutory regulation would work as technologic advancements allow users to create and access online news sites from anywhere in the world. If users can create fake news, they can create fake identities, which raises ‘concerns for verification, accountability and accuracy’; therefore, alternative solutions may be needed to tackle the problem effectively. This view is supported by Dr Tambini from the LSE, who states that the unprecedented number of fake news sites is a “huge and far-reaching problem that cannot be dealt within existing legal categories”. Therefore, a possible solution to tackling fake news would be to establish a global regulatory body that could operate across borders. Taking such an approach would not hinder the freedom of expression nor create restrictive frameworks, as a global collective regulatory body would find common ground, respecting the rights of all democratic institutions, and ensure that accuracy of information could be maintained across online platforms.
Whereas, it would be difficult to establish statutory regulation without hindering the right to freedom of speech, which must be balanced against the risk of giving states excessive powers over the expression rights of individuals and organizations creating such content. ‘The only category where there may be an argument for statutory regulation is the category of deliberate falsehood with intent to compromise national security’. However, such a high standard will be difficult to meet and not tackle the phenomena of fake news. Instead a global regulatory system is more likely to create an effective solution that can monitor all types of fake news. However, the major concern with creating a global regulatory body is forming a consensus to establish one, and deciding some universal criteria of what constitutes as fake news. Regardless of the flaws in a global regulatory body, it is likely to be the most effective solution for a global problem.
A further concern that must be addressed is the misuse of the term ‘fake news’. The term ‘fake news’ has been used by public figures and politicians to justify politically motivated attacks on journalists and press freedom. ‘What was once considered a symbiotic relationship between politics, media and the public is turning from a Golden Triangle into a Bermuda Triangle’.  Representatives from the White House and President Trump have used this term on numerous occasions to accuse media reports that oppose Trump’s views. Moreover, in the UK, headlines such as, ‘we invested £10bn extra in the NHS last year’, and claims that, ‘Corbyn would order Labour MPs to vote for the government’s bill triggering Article 50’, were later found to be false. Nonetheless journalists claim to have correctly interpreted quotes from politicians, but due to the lack of clarity, and changing views of the politicians, their journalism was labelled as ‘fake news’. This labelling is no fault of their own, but it definitely damages their reputation as credible sources in the eyes of the public. A global regulatory body could establish mechanism which safeguard online journalists and individuals that may have complaints to online content.
These mechanisms would be similar to the way the press is currently protected by regulatory bodies such as IPSO, Ofcom, and Advertising Standard Authority which provide all individuals with a complaints procedure to resolve disputes. For online news sites created by individuals, however such protections and remedies are not available. In these cases, the only way the news sites could safeguard themselves from possible accusations of creating false news would be to become members of such bodies. A global regulatory body could protect and hold online journalists accountable for their reports, and scrutinise claims by politicians in the public eye. This protection could be extended to the existent online press, to further safeguard them from accusations and ensure accuracy.
Traditional gatekeeping mechanisms, such as national statutory laws and self-regulatory frameworks, can ensure online platforms are subject to similar frameworks as newspapers and the broadcasting media are, but this approach would ultimately fail because the internet has no borders- allowing online platforms to operate globally, across multiple jurisdictions. Fake news created in a different country, would still be accessible and impact users from other countries, (as proven to be the case with Macedonia). Therefore, the issue of fake news can only be tackled effectively by all democratic institutions through the creation of a global regulatory body.
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