Governing Fake News: The Regulation of Social Media and the Right to Freedom of Expression in the Era of Emergency

Governments around the world are strictly regulating information on social media in the interests of addressing fake news. There is, however, a risk that the uncontrolled spread of information could increase the adverse effects of the COVID-19 health emergency through the influence of false and misleading news. Yet governments may well use health emergency regulation as a pretext for implementing draconian restrictions on the right to freedom of expression, as well as increasing social media censorship (ie chilling effects). This article seeks to challenge the stringent legislative and administrative measures governments have recently put in place in order to analyse their negative implications for the right to freedom of expression and to suggest different regulatory approaches in the context of public law. These controversial government policies are discussed in order to clarify why freedom of expression cannot be allowed to be jeopardised in the process of trying to manage fake news. Firstly, an analysis of the legal definition of fake news in academia is presented in order to establish the essential characteristics of the phenomenon (Section II). Secondly, the legislative and administrative measures implemented by governments at both international (Section III) and European Union (EU) levels (Section IV) are assessed, showing how they may undermine a core human right by curtailing freedom of expression. Then, starting from the premise of social media as a “watchdog” of democracy and moving on to the contention that fake news is a phenomenon of “mature” democracy, the article argues that public law already protects freedom of expression and ensures its effectiveness at the international and EU levels through some fundamental rules (Section V). There follows a discussion of the key regulatory approaches, and, as alternatives to government intervention, self-regulation and especially empowering users are proposed as strategies to effectively manage fake news by mitigating the risks of undue interference by regulators in the right to freedom of expression (Section VI). The article concludes by offering some remarks on the proposed solution and in particular by recommending the implementation of reliability ratings on social media platforms (Section VII).