Friday, September 30, 2022
Ira Rubinstein (New York University), Tomer Kenneth (New York University), Online Public Health Misinformation, and How to Tame It, Harv. J. Legis. (Forthcoming):
The COVID-19 pandemic was shaped by a corollary infodemic: an abundance of public health misinformation (PHM), primarily online. Studies attest to the pervasive effects of online PHM, creating health hazards for individuals and hindering society’s attempts to confront this and other diseases. Troublingly, online PHM is a multidimensional problem. It involves regulation of speech online, content moderation, public health law, First Amendment issues, and intricate questions in epistemology and misinformation studies, amongst others. This Article features a comprehensive discussion of the problems associated with online PHM, points to shortcoming in existing responses, and advances better solutions.
The Article begins by developing the concept of PHM and discussing the major harms it poses, using COVID-19 as a main example. Next, it surveys how major platforms confronted online PHM during the COVID-19 pandemic and explains the shortcomings of relying on platforms to set and enforce relevant policies. The Article also considers the existing regulatory measures governments use to confront online PHM and finds them lacking. Positively, the Article promotes soft-regulation as a promising tool for confronting online PHM. Specifically, it discusses voluntary self-regulation and voluntary enforcement—two measures successfully used around the world to confront online speech harms that are mostly overlooked in the U.S. Finally, it explores a new approach to regulating online speech: regulating algorithmic amplification. Using recent bills and caselaw, it argues (contrary to popular views) that such regulation can survive First Amendment scrutiny. The Article’s contributes to existing scholarship by developing a rich and compelling plan for confronting online PHM, thereby casting new light on online speech regulation.