Regulating Fake News

The Internet is, at present, the world’s most efficient communication system and facilitates the mass dissemination of information (good and bad) instantaneously across the globe often exacerbating any effective regulatory oversight. Though initially conceived by

commentators and users as a speech utopia , the phenomena known as ‘fake news’ is

contributing to concerns that the Internet is now in danger of becoming a dystopia for the free flow of information and ideas. With the problem of fake news endangering various topics, it is of particular importance when it affects news, reputation, political communication or other topics relevant for a contemporary and political public sphere. A study from June 2016 suggests more UK citizens get their news from social media than traditional media outlets. Analysts expect this number to increase in both the short and long-term. A recent study has shown that 62% of US citizens get their news via social media, yet the influence of voter decisions is unclear, there is some evidence that fake news has affected a small percentage of the electorate. Accordingly, in narrow electoral campaigns, governments are right to see fake news as a potential threat to democracy. The challenge for regulators is not over-regulating political speech in contradiction with our rights-based regimes. Central to the problem (and the solution) are digitally mediated platforms (DMPs), which now play a central role in an emerging eco-system of pseudo-governance, responsible for the cultivation of democracy and the constitutional freedoms of expression, information and assembly. Yet, at its heart, fake news is a deceptive communication. Part 1 examines the phenomena known as ‘fake news’ and its role in the landscape of fundamental rights of expression and media plurality. Part two of the paper offers a typology for determining deceptive communications. By breaking down the problem of fake news in this manner, one can better understand the scope and rationale for mapping regulatory solutions. Part three examines regulatory design focussing on extra-legal solutions to algorithmic processing to big data sets across DMPs. Part four examines the GDPR for any remedies to the problem of profiling and micro-targeting potential voters.