(May 11, 2018) On April 26, 2018, the European Commission announced a set of measures, among them a European Union (EU)-wide Code of Practice and an independent European network of fact-checkers, to combat the spread of disinformation (fake news) online. In this context, disinformation is defined as “verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and may cause public harm.” The proposed measures complement the General Data Protection Regulation (GDPR) that will apply across the EU beginning May 25, 2018. The Communication of the Commission does not address related issues like illegal content online. (Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Tackling Online Disinformation: A European Approach, COM (2018) 236 final (Apr. 26, 2018), EUR-Lex website; Press Release, European Commission, Tackling Online Disinformation: Commission Proposes an EU-Wide Code of Practice (Apr. 26, 2018), European Commission website; Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), 2016 O.J. (L 119) 1, EUR-Lex website.)
The Communication states that disinformation can be used to manipulate policy and societal debates and the initiatives taken by online platforms so far have been limited in scope and unsatisfactory. As disinformation is a multifaceted problem, it cannot be addressed with a single solution. (COM (2018) 236 final, supra, at 2, 4 & 6.) The proposed measures aim to improve transparency regarding the origin of online information, promote diversity of information to empower people to make informed decisions, foster credibility of information by providing an indication of its trustworthiness, and create inclusive solutions with the involvement of all stakeholders. (Id. at 6.)
The Commission proposes convening a multi-stakeholder forum on disinformation that would be tasked with developing an EU–wide Code of Practice on Disinformation by July 2018. (Id. at 8.) The forum would include online platforms, the advertising industry, major advertisers, and media and civil society representatives. The Code of Practice aims to achieve the following:
- Significantly improve the scrutiny of advertisement placements.
- Ensure transparency about sponsored content, in particular political and issue-based advertising.
- Intensify and demonstrate the effectiveness of efforts to close fake accounts.
- Facilitate users’ assessment of content through indicators of the trustworthiness of content sources.
- Improve the findability of trustworthy content.
- Establish clear marking systems and rules for bots.
- Empower users with tools to facilitate content discovery and access to different news sources representing alternative viewpoints.
- Ensure that online services include safeguards against disinformation.
- Provide trusted fact-checking organizations and academia with access to platform data. (Id. at 7–8.)
The Commission will assess the implementation and effectiveness of the Code of Practice and, if necessary, propose further action, including binding legislation instead of self-regulation. (Id. at 8.)
In addition, the Commission proposes creating an independent European network of fact-checkers that would also participate in the multi-stakeholder forum on disinformation. (Id. at 9.) The members would be chosen from the International Fact-Checking Network (IFCN), which adheres to the International Fact-Checking Network Code of Principles. (Id.) According to the website of the IFCN, the Code of Principles “is for organizations that regularly publish nonpartisan reports on the accuracy of statements by public figures, major institutions, and other widely circulated claims of interest to society. It is the result of consultations among fact-checkers from around the world and offers conscientious practitioners principles to aspire to in their everyday work.” (IFCN at Poynter, International Fact-Checking Network Fact-Checkers’ Code of Principles (2018), Poynter Institute website.) The European network of fact-checkers would establish common working methods, exchange best practices, and participate in joint fact-checking and similar activities. (COM (2018) 236 final, supra, at 9.)
The European Commission would provide support to the network by providing online tools and launching a secure European online platform on disinformation. The platform would provide tools to collect and analyze cross-border data and access EU-wide open data. This platform would enable fact-checkers to act as trusted flaggers. (Id. at 10.)
Furthermore, the European Commission would support Member States in managing risks to the democratic electoral process from cyber-attacks and disinformation and in efforts to increase media literacy. It also proposes that Member States use horizontal state aid measures that apply to all industries to ensure that quality journalism is not hampered by market conditions and to take specific action to promote media freedom and pluralism, quality news media, and journalism. (Id. at 11–15.) The Commission, in cooperation with the European External Action Service, would also develop further strategic communications responses and other mechanisms to tackle the problem of disinformation. (Id. at 16.)
The Communication from the Commission on tackling disinformation is the latest among a series of initiatives that the EU has started with regard to countering the spread of disinformation. In 2015, the East Stratcom Task Force was set up to develop an action plan to address Russia’s ongoing disinformation campaigns. (Questions and Answers About the East StratCom Task Force , EUROPEAN EXTERNAL ACTION SERVICE (EEAS) (Nov. 8, 2017).) In June 2017, the European Parliament called upon the Commission to “analyse in depth the current situation and legal framework with regard to fake news, and to verify the possibility of legislative intervention to limit the dissemination and spreading of fake content.” (European Parliament Resolution of 15 June 2017 on Online Platforms and the Digital Single Market (2016/2276(INI)), Doc. No. P8_TA (2017) 0272, para. 36.) In addition, the Commission launched a public consultation process and consulted with relevant stakeholders. (European Commission, Summary Report of the Public Consultation on Fake News and Online Disinformation (Mar. 2018), European Commission website; European Commission, High-Level Hearing: Preserving Democracy in the Digital Age (Feb. 22, 2018), European Commission website.)
In January 2018, the European Commission established a High Level Expert Group (HLEG) on Fake News and Disinformation Online, which was tasked with defining the phenomenon, reviewing best practices to fight the spread of fake news online, and providing recommendations for short-term and long-term responses. On March 12, 2018, the HLEG published its report, concluding that a multidimensional approach and the collaboration of all stakeholders involved was necessary to tackle disinformation. The proposed responses are designed to enhance the transparency of online news, promote media and information literacy, empower users and journalists to tackle disinformation, safeguard the diversity and sustainability of the European news media ecosystem, and promote continued research on the impact of disinformation. As one of the short-term responses, the HLEG recommended a Code of Practices and formulated ten principles for online platforms. The EU-wide Code of Practice on Disinformation proposed by the European Commission in its Communication builds on these recommendations. (European Commission, A Multi-Dimensional Approach to Disinformation – Report of the Independent High Level Group on Fake News and Online Disinformation 5 et seq. (Mar. 2018), European Commission website.)