Fake news is nothing new, so banning it is unlikely to happen

French president Emmanuel Macron’s recent pledge to make a new law to tackle perceived fake news has touched nerves in some corners with its potential impact on freedom of expression.

Fake news is nothing new – there have probably always been news reports that were deliberately inaccurate. But it was arguably rarer in the days before the internet because it tended to be prevented by media regulators, defamation law and newsroom editorial controls.

To some extent, that’s still true; in the UK, for example, the Independent Press Standards Organisation (IPSO) has handled 28,645 complaints regarding inaccuracy since being set up four years ago, ruling that its accuracy provision has been breached in 174 cases.

Twitter, Facebook and other social media sites have been largely free from this regulation, however, due to concerns about individual freedom of expression. Web-only publishers have managed to avoid most traditional media regulation, too. Since social media in particular has grown rapidly, fake news has become less controllable and more sensational.

This has been particularly noticeable in politics, such as in the recent French and American presidential elections, even if the impact of fake news is difficult to ascertain. When you talk about clamping down on fake news, you are basically therefore talking about regulating online press and social media – the question is how far regulation should extend, and how.

The current set-up

Traditional media regulation is rather complex and fragmented. In the UK, the press sector is mainly voluntarily self-governed by IPSO, which uses the Editors’ Code of Practice to adjudicate on complaints by victims.

As far as fake news is concerned, Article 1 of the Code requires that the press must not publish “inaccurate, misleading or distorted information or images, including headlines not supported by the text”. The remedies are limited, however; offenders are normally asked to make corrections or publish apologies. The decisions are also not legally enforceable, though in practice publishers almost always observe them.

In UK broadcasting, the regulator is Ofcom. Here, fake news is covered by section five of the Broadcasting Code. This requires broadcasters to report the news with “due accuracy and due impartiality”, breach of which will result in legal actions against them, financial penalties, or, in the most serious cases, a suspension or revocation of their broadcasting licence.

Social media has been exempt from these regulations. Web publishers are in theory regulated by IPSO, but in practice the regulator has few web-only members. All online statements are still subject to defamation law, however – as well as criminal law if the inaccurate information contains racial or religious hatred or other offensive elements.

In addition, there is regulation at EU level in the form of the Audio-Visual Media Services Directive 2007. It has harmonised member states’ laws in this area, establishing a regime that distinguishes between scheduled “audio-visual services” like the BBC, “on-demand services” like Netflix, and “user-generated social media” like Twitter.

In particular, audio-visual services – also known as “linear services” – are obliged to take editorial responsibility, while social media is excluded from this obligation. The press, whether newspapers or online publications, and private blogs are not even covered by the directive, except for their audio-visual elements.

In view of the increasing influence of online content, the European Commission recently amended the directive. This slightly enhances the obligations for online media by encouraging self-regulation or co-regulation of online platforms. As far as accuracy is concerned, the amended directive requires online platforms to behave responsibly, but this is a rather principled provision without too much specific content.

In short, as far as fake news is concerned, the EU regulations still leave social media and web publishing relatively unregulated. Again, the best resorts are general defamation law or criminal law.

What to do

President Macron’s proposal sets a goal of regulating fake news no matter where it is published. He has provided little detail about how he would do this.

One option would be to introduce content regulation to the online sphere, but that would raise a number of questions. For one, from a legal point of view, it’s not easy to define what fake news is. The very term suggests intent, but how to separate this from the fact that the media has long been allowed to make mistakes to perform its democratic functions – so long as it has made responsible attempts to investigate the facts of the reports?

Second, the freedom of expression question refuses to go away. You expect a higher degree of free speech on social media because these sites are an essential alternative source of news free from the control of corporate powers. Enhance the regulation of this sphere and you are in danger of stifling lively online debate.

Indeed, article 10 of the European Convention on Human Rights protects free expression, only allowing restrictions on public interest grounds. Any attempt to restrict political speech may lead to the intervention of the European Court of Human Rights – to which the UK might well remain a party after Brexit.

Along with a feeling that social media is less influential than traditional media, the importance of free speech on social media appears to have so far persuaded the UK against trying to introduce regulation.

One of the underlying justifications for free speech was put forward by the great liberal thinker John Stuart Mill. He argued convincingly more than 150 years ago that unrestricted discussion helps the discovery of truth. Accept this and you’re back to the status quo: so long as fake news does not cause any other apparent harms to individuals, as opposed to the political climate, perhaps no more regulation of social media is needed beyond general defamation law and criminal law.

Perhaps all we should or even can do is to take heart from Mill that the truth will eventually surface from the debate – and that a robust online environment will therefore self-correct.