I was recently invited to be part of a British Association of Comparative Law (BACL) panel to discuss Dr Irini Katsirea’s new book Press Freedom and Regulation in a Digital Era: A Comparative Study. As part of that panel, one of the questions I was asked to speak to was: Does the regulation against mis-and disinformation pose a threat to press freedom? In this post (which was first published on the BACL Blog), I set out my thoughts on this particular issue
In my view there are two facets to this question.
Firstly, false information is synonymous with certain factions of the UK press. We all know that press barons have used propaganda to advance their own agendas. And the lucrative trade in celebrity gossip in our tabloid press provides an example of the use of what is often untrue, or only partially true, information for financial gain.
Today the internet and social media provide the ideal environment for false information to grow and spread online and offline. This is amplified by the symbiotic relationship that exists between online content and factions of our media, as it is often used as a source of news. The fact that ‘trusted’ mainstream media publish what may be false information, serves to justify and support that false information, creating a self-fulfilling and insidious cycle. This situation has not been helped in recent years by the state of the press industry. This has led to ‘faster and shallower corporate journalism’, necessitating the need for newspapers to provide news 24 hours-a-day across multiple platforms. This, combined with fewer journalists, and an increasing reliance on clickbait and sensationalist headlines to generate clicks and advertising revenue, encourages the recycling of information, which leads, in some cases, to ‘fast and loose’ journalism that sees source and fact checking being cast aside. This results in more mistakes, including the inadvertent dissemination of false information.
This has contributed to a precipitous decline in the trust we have in newspapers, which recent Ofcom News Consumption surveys tell us has resulted in people going to other, usually online, sources for information, which in turn contributes to the vicious circle the press finds itself in. This, of course, does not create the environment the press needs to exercise its freedoms and to meet the obligations that come with those freedoms.
So, on the one hand the effective regulation of false information could help the press, and the public sphere by contributing to the restoration of public confidence in the press.
On the other hand (and this is the second facet to this question), the distinction between disinformation, misinformation and malinformation is not always clear. By regulating against false information specifically, we could end up with regulatory over-reach, resulting in, for example, newspapers and publishers being reprimanded for publishing false information by mistake (as Dr Katsirea rightly says in her book, Press Freedom and Regulation in a Digital Era, it is difficult to always draw a line between the intentional dissemination of false information and that done by mistake – as she says, we should not tar all publications with the same brush). It may also result in newspapers choosing not to publish important public interest information for fear of regulatory sanction – they may err on the side of caution, especially when we consider their financial precarity. Ultimately, this would have a detrimental effect on the exercise of press freedom and the health of the public sphere.
And let us not forget that there is already an, albeit voluntary, press regulatory scheme in place requiring regulated publishers to adhere to IPSO’s and Impress’s Accuracy codes. Moreover, such content may be covered by the torts of misuse of private information, or defamation.
There is no silver bullet for tackling false information. It has existed for centuries, and always will exist, and so long as we have the internet and social media, it will be pervasive and invasive. I am not convinced that specific regulation is the appropriate way to meet the challenge we face. History tells us that law and regulation to deal with false information, tends not to work, largely because there is often a tension between misinformation and free speech laws and principles, including press freedom. In my view, when it comes to something as amorphous as false information, the rigidity of legal regulation means it is, probably, doomed to fail – and may, in some cases, make things worse.
Rather, we must find other ways to live with false information without inadvertently eroding free speech and press freedom. There is no one way of doing this. But there are imperfect (and I acknowledge, somewhat idealistic) ‘more speech’ solutions that can be deployed to improve the situation, and meet the challenges posed by false information. Fundamentally, we must take responsibility for our own online behaviour, and in doing so acknowledge that behavioural adaptation may be required at a (micro) individual and (macro) societal level. For instance, we must improve our education and awareness on how to lead a safe and productive online life (to be aware of the manifold ‘dangers’ of being online, the cultural context of different online fora, and the cultural differences between users across jurisdictions and, of co-existing online and offline, and to be able to take advantage of the many social and educational benefits of being online). Thus, education, comparative awareness of cultural differences, and digital / media literacy are key to the endeavour. Furthermore, we must engage more directly and assertively with organisations that offer services, resources, and expertise to tackle false information. This requires cross-party commitment from our political parties to appropriately empower and fund these organisations to ensure they are able to implement long-term strategies. Finally, we must utilise our research power through our universities and other research and funding bodies to continue to develop our understanding of the problem, and ways we can tackle it. Again, this requires cross-party commitment to long-term funding.
This post has been republished with permission from, and thanks to, the British Association of Comparative Law.