Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, October 4, 2022

Sanders, Jones, and Liu on Stemming the Tide of Fake News: A Global Case Study of Decision to Regulate @amy_k_sanders

Amy Kristin Sanders, University of Texas, Austin, School of Journalism, Rachael Jones, University of Florida, College of Law, and Xiran Liu, Northwestern University, have published Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate at 8 Int'l Media & Ent. L. 203 (2019). Here is the abstract.

It is no secret that fake news has become a lucrative enterprise. The impact of fake news undoubtedly can be felt on nearly every continent – from the United States presidential election to the streets of Venezuela, the islands of Indonesia, and even among Macedonian teenagers looking to turn a quick profit. As the tide of anger-inspiring articles continues to churn out false reports en masse, sending shockwaves through the Internet, political leaders around the globe are debating the development of policies and practices aimed at curbing the spread of sensationalist – and often made-up – “news” stories that are influencing their countries’ citizens. Some nations have decided to develop legislation to regulate the fake news epidemic. For example, in 2017, Germany enacted a law that authorizes fines of up to 50 million Euros against platforms that fail to remove objectionable or false content within 24 hours of being notified. Germany’s law aims to enlist the power of the private sector to restrict this form of false content, targeting social media companies like Facebook, Twitter, and other social media sites that create a haven for fake news. Although government attempts to crack down on fake news are carried out in the name of preserving democracy, whether these policies serve the best interest of free speech and press has yet to be determined. While Germany’s new law is by far the “boldest step” taken by a Western democracy, other countries, such as the Philippines, have made similar legislative moves. Officials in the Czech Republic, concerned about potential interference with the upcoming 2017 parliamentary and presidential elections, established a government unit designed to root out and flag fake news in the name of truth and democracy. Calls for action in Singapore and other countries have been less dramatic, seeking revision of existing laws to address fake news concerns. However, these less direct methods of redress are troubling nonetheless and may be problematic in the future. In contrast, the movement to punish and regulate fake news in the United States has gained little traction because of the significant constitutional hurdles presented by the First Amendment. This article examines and evaluates these major global attempts to curtail fake news in light of democratic values and ideals. Using the “marketplace of ideas” and “self-governance” theories of freedom of expression, this article ultimately condemns government regulation of fake news. It cautions that government regulation of speech generally tips the balance of power in a democratic society in favor of the government and away from individual citizens. This article contends that government regulation of even false speech frustrates the marketplace of ideas by limiting voices and thus preventing the public from receiving all perspectives on issues directly related to their democracy. This, in turn, affects the bedrock democratic principle of self-governance. This, on top of the lengthy history of fake news, indicates that government regulation is merely a solution to an old problem, not the creation of new laws. Rather, this article argues that the perceived global crisis created by fake news instead merits reconsideration and revaluation of how we prepare citizens for their role as participatory members of a democratic society through greater education, news literacy, and understanding of how the marketplace works.

Download the article from SSRN at the link.

| Permalink