The Royal Netherlands Society of International Law (KNVIR) Spring meeting: Fake News and National Sovereignty

13 June 2017, The Hague

In a recent major election campaign, climate change was referred to as fake news.

The arguments used reminded me of my history classes.

In 1615, the Roman Inquisition tried a Tuscan scientist for having published allegedly fake news about the Earth revolving around the Sun.  He was found suspect of heresy, forced to recant and spent the rest of his life under house arrest. The verdict was justified, until not so very long ago, because of the dangerous political and social consequences of the incriminated publications.

The scientist’s name was of course Galileo Galilei, whom Albert Einstein described as the Father of modern science.

Galileo Galilei’s case is just one of the countless examples where the powers of the day tried to suppress the freedom to express an inconvenient truth by describing it as fake.

And today, such attempts come as no surprise in dictatorships and authoritarian regimes.

At the same time, incitement to hatred and violence has been, and continues to be presented as ideological or religious truth.  From Hitler’s ‘Mein Kampf’ to Daesh’s terrorist propaganda.

But even when we speak about freedom of expression in well-established democracies today, we often hear in the same sentence a “but” and then mention is made of “fake news”.  

We often hear that we are “at war”, in an information war to be precise.  The US intelligence community revealed in April their belief that hackers interfered in the months leading up to November 2016 with targeted propaganda and misinformation to help President Donald Trump secure his victory.  

While propaganda and misleading or factually wrong information have always existed and have always been particularly prevalent ahead of elections or in otherwise politically charged times, they are today rapidly and globally produced, reproduced and disseminated online, often via social media.  

User profiles on social platforms are exploited to micro-target those users who are expected to “like” and further spread the content without verification, taking advantage of what has been called the human “confirmation bias” – the tendency to search for, remember and share information that confirms one's pre-existing beliefs.

This development clearly poses a huge challenge to our concept of pluralist democracy.

1. In my presentation tonight, I want to reflect on three main questions, namely
2. What are we talking about
3. What should we do about it
4. What should we not do

What are we talking about

First of all, it is important to clarify what we actually mean when we say “fake news”. It is a very trendy but also extremely vague notion and that is why we often see it in inverted commas.

In fact, current research on the phenomenon as part of what insiders refer to as the global information ecosystem, differentiates between seven different types of mis- and disinformation.

Firstly, depending on the degree of falsity of content, facts may be incorrect, context may be misleading, analysis may be wrong.

Secondly, we need to analyse the motivation that lies behind it

Thirdly we must look at the means by which it is spread.  

Some “fake news” are simply inadvertent exaggerations or misrepresentations due to lack of analysis and understanding of context. In today’s media environment where traditional media are under pressure to compete with 24/7 outlets that aggregate news online, careful fact-checking is not always prioritised over speed.

Other types of misinformation actually involve crime: the intentional publication of false information for political or financial gain

There may also be links with cybercrime, particularly when accounts are hacked to spread false information or when botnets are used to generate followers, to amplify fake news, or to create filter bubbles.  There have been a number of high profile cases in past months, involving for instance the US Presidential candidate Hillary Clinton or the then French Presidential candidate Emmanuel Macron.

The rise of “fake news” is of major concern to the Council of Europe, its 47 member States, and its 820 million citizens.  The Secretary General published his annual report in April on the state of democracy, human rights and the rule of law published, entitled: “Populism – How strong are Europe’s checks and balances”. 

The report looks in more detail at several aspects of European democratic security, such as: how effective is the functioning of our democratic institutions? How inclusive are our societies? And what is the level of protection for freedom of expression in our societies?

Within the Council of Europe we look at the issue of “fake news” from different perspectives: freedom of expression, data protection, criminal law and cybercrime and counter-terrorism.  

Only the national defense perspective, excluded by the Council of Europe’s Statute, is not included.  Given the complexity of the issue, we must be prepared to look closely and develop a comprehensive and nuanced approach that tackles “fake news” from various angles.  

What should we do about it

Faced with today’s rising levels of crime and extremism online, including terrorist propaganda and radicalisation, it is increasingly important for internet companies and governments to work together.  

The Internet has given birth to an industry which has unprecedented and global influence.

Giants such as Facebook and Google have more data on us than our families.

Last year, when adopting the Council of Europe Internet Governance Strategy 2016 – 2019 the Committee of Ministers decided to set up a Platform for co-operation with Internet companies.  We hope to establish this Platform in the autumn which should enable companies to have a seat at the table of negotiations at the Council of Europe.

Tackling today’s crime effectively across borders is increasingly difficult because of much of the necessary evidence is stored electronically, and increasingly in the so-called ‘cloud’. 

Uncertainty and inconsistencies in legislative frameworks across borders, as well as between national regulations and international obligations create virtual impunity for cybercriminals.  

The Committee of the Parties to the Council of Europe’s Cybercrime Convention (which has 52 states parties, including; e.g. Australia, Canada, the USA, Japan, Panama and Sri Lanka).  Last week the Committee agreed to start negiotiations on an Additional Protocol to the Convention to enable law enforcement to obtain more rapid access to subscriber information, that is the ‘who’, from Service Providers in other jurisdictions.

“Fake news” in Europe very often attacks migrants and religious or ethnic minorities.  It aims to increase anti-immigrant and xenophobic sentiments, which are then harvested for political gain. The Council of Europe’s No Hate Speech Movement supports the development of counter- and alternative narratives which challenge and replace “fake news”.

In addition, we are also conducting research into mis- and disinformation on social media in the context of filter bubbles and we are supporting initiatives in a range of member States to promote fact-checking capabilities.  

Tools are designed and deployed that enable users to flag possible false stories, which are then examined for their accuracy by independent third-parties.  This is particularly important in periods leading up to elections.  A global research and training organisation named First Draft includes over 300 people working in major social media platforms, technology companies and in over 100 global newsrooms, fact-checking groups and human rights organisations.  

As an example First Draft has developed ‘CrossCheck France’, a collaborative flagging-mechanism supported by Facebook and eight French media organisations, where users can identify information that they believe to be false.  

What has been flagged is gathered on a special portal to which partner media organisations have access, and then checked.  If considered to contain inaccurate information by at least two partners, the content will be made visible to users with an icon “questionable truthfulness”.  Users will be warned not to share the content and it will not be possible to use such content for advertising on Facebook.  

A similar mechanism is now being set up in Germany (‘CrossCheck Germany’).

Facebook itself recently announced it was doubling its current number of content moderators by hiring 3000 extra staff.

The Council of Europe is promoting digital citizenship education and media and information literacy programmes for all age groups, including in schools, to help children to develop the necessary critical thinking skills that they need: what do we need to be check before clicking the re-tweet or share button?

What should we not do

While it remains unclear to what impact “fake news” actually has on political opinions and election results - and research thus far suggests that the impact may be less significant than feared, we must take the deliberate manipulation of news and the repurposing of personal data for message targeting services in the context of electoral campaigns very seriously.  

In the US, the idea has indeed been discussed as a threat to critical infrastructure, and thus to national security. 

However, we should not attribute the rise of populist discourse and the new threats to our security and national sovereignty only to misinformation campaigns. The phenomenon is a symptom of citizens’ loss of trust in the media.

And more than that: people have lost trust in their governments, in their parliaments and in their courts. This is precisely why we need to be careful. We want to re-establish trust in society because that is what we need as a foundation for democratic security.

We need critical journalists and civil society organisations to be heard. We need them to question the false and biased information that is out there and to discuss openly what motivation may be behind, what are its causes and context, and why does it appear plausible and trustworthy to some.  This we can only achieve through open dialogue and exchange, and through public debate.

Freedom of expression is the cornerstone of our democracies and of our democratic security.  That is why it is protected as a fundamental right in all European Constitutions (for instance in Article 7 of the Dutch Constitution).  

Freedom of expression entails the right to seek, receive and impart all kinds of information and ideas, regardless of frontiers.  

And, according to the case-law of the European Court of Human Rights, it is not limited to true information only, even if one strongly suspects that the information may not be truthful.

This, according to the Strasbourg Court in a 2005 Judgement, Salov v. Ukraine, “would deprive persons of the right to express their views and opinions about statements made in the mass media and would thus place an unreasonable restriction on the freedom of expression set forth in Article 10 of the Convention”.

Freedom of expression also comprises biased opinions, objectionable opinions and shocking opinions.

The Secretary General’s annual Report which I mentioned earlier sadly paints an alarming picture of the state of freedom of expression in Europe.  Findings from the assessment of conditions across Europe show that member States fail to guarantee an enabling environment for the freedom of expression.  

Journalists and other media actors are exposed to threats and violence, a growing number have been imprisoned and there is an increase in other restrictions, often justified by national security concerns.

Freedom of expression is not an absolute right.  Interference may be justified in order to protect the rights of others or other legitimate interests on condition that specific requirements are met.  Under Article 10 of the ECHR, these requirements are:

1. The interference must be prescribed by law.  It must be precise and predictable to safeguard against abuse; it is questionable whether the prohibition or the threat of sanctions based on vague terms such as “fake news” is sufficiently precise;
2. The interference must serve a legitimate aim.  National security is one of the aims listed in Art. 10.2, and the Strasbourg Court usually grants a wide margin of appreciation to States;
3. The interference must be necessary and proportionate to the pursued aim. The necessity and proportionality of prohibiting the spread of misinformation is difficult to establish as long as the real impact of the misinformation remains unclear.  This is also why we certainly need more research on the phenomenon and its consequences for society.

There are new initiatives in some Council of Europe member States to penalise “fake news”.  In France, a draft law proposes that authors and distributors of false facts (not opinions) may incur fines of up to 15000 EUR or imprisonment.  

Double intent is required (intention to spread false information and intention to manipulate the public). In Germany, a draft law proposes fines of up to 50 million EUR against large internet platforms (over 2 million users) if they do not remove within 24 hours all “manifestly illegal” (including “illegal fake news”) and within 7 days all illegal content.

But what is “illegal” and who determines whether certain content is illegal? This differentiation is not easy. We cannot simply start with blanket restrictions on freedom of expression, including online.  All our measures must allow for a careful distinction between what is intentional fraud, what is bad faith manipulation of the public for personal or political gain, what is incitement to racially-motivated violence, which then also qualifies as hate speech, and what is simply uncomfortable, unlikable, disturbing even, or utterly unacceptable speech.  

Given the fundamental importance of freedom of expression in our societies, it is crucial that this distinction, which determines whether a certain message is protected by the freedom of expression or not should be decided on by courts, guaranteeing transparency and the right to fair trial.

[Let me give you an example.  The Grand Chamber judgment of the European Court of Human Rights of October 2015, Perinçek v. Switzerland is a case concerning the criminal conviction of a Turkish politician for publicly expressing the view that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide.  

The Swiss courts had held that his motives appeared to be racist and nationalistic and that his statements did not contribute to the historical debate.  The applicant complained that his criminal conviction and punishment had been in breach of his right to freedom of expression.

The Court underlined again that a careful balance has to be struck in each case between the different Convention rights at stake, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved.

In this case, the Court affirmed the freedom of expression as the authorities appeared to have censured the applicant simply for voicing an opinion that diverged from the established ones in Switzerland.

The Court concluded that it had not been necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the case.

In particular, the Court took into account the following elements: that the applicant’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; the context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland; the statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland; and there was no international law obligation for Switzerland to criminalise such statements.]

This judgement shows that we must avoid the risk of unwarranted and disproportionate limitations to the freedom of expression, to avoid censorship. If we ask internet platforms to delete “fake news” or “hate speech” without a clear legal basis and procedural safeguards, there is a high risk of over-blocking by intermediaries.

And more importantly, such measures disregard the fact that digital technologies enable not only the circulation of misinformation but also speedy responses and questioning/verifying propaganda in the public sphere.

Overall, prohibiting or censoring speech has never shown to be effective: it is rather by more speech including counter-speech, and by promoting media literacy, independent media and public interest journalism that our societies, confronted with the new challenges we are discussing today, will be helped. The Secretary General called in an interview in January of this year on all of us to trust in the self-healing forces of democracy and to allow for more freedom of expression not less.

What we need is more media diversity, more pluralism and strong, independent public broadcasting. I want to refer here to this year’s Joint Declaration on freedom of expression including by the UN Special Rapporteur on Freedom of Opinion and Expression Daniel Kaye and the OSCE Representative on Freedom of the Media (then Dunja Mijatović) which focussed on Freedom of Expression and “Fake News”, Disinformation and Propaganda.

The Declaration reaffirms again the human rights standards that must apply to all efforts to address disinformation and propaganda and underlines that prohibitions or the threat of sanctions based on vague terms such as “false news” are incompatible with international freedom of expression standards.

The Declaration further encourages the promotion of diversity and plurality in the media, including through the presence of strong, independent and adequately resourced public service media, and the promotion of media and digital literacy from school onwards to help citizens identify what is likely not genuinely prepared news.

It further emphasises the particular role played by internet intermediaries as well as by journalists and media outlets and calls on close stakeholder co-operation to develop participatory and transparent initiatives for creating a better understanding of the impact of disinformation and propaganda on societies, and for devising appropriate responses to these phenomena.

Conclusions

This is what the Council of Europe is doing. We are actively co-operating with a range of diverse stakeholders, governments, including law enforcement, private sector, civil society, and the media community to better understand and grasp the phenomena of “fake news” and to help develop effective and comprehensive responses.

We are also engaged on various levels with efforts to promote effective law enforcement across borders, and to fight crime, cybercrime and terrorism which are of concern in all of our member States.

We are supporting youth organisations and their initiatives against hate and for more tolerance and respect.

And we are defending freedom of expression as the cornerstone of democratic societies.  

We must not jeopardise freedom of expression or call it into question because of fear and anxiety but, on the contrary, we need to rely on it and foster this freedom today more than ever.