“Fake news” has been present in the UK for several centuries. It has recently become an issue that poses a potential national security threat, with foreign actors seeking to influence UK citizens. The UK does not currently have any legislation that regulates the validity of news posted by online platforms. Several government reports have been issued on this subject that have recommended the introduction of a duty on tech companies to remove content identified as harmful or face fines. The government is currently in the process of compiling a white paper that will set out a framework of how it will approach issues caused by fake news posted online.
“Fake news” is not a new phenomenon in the United Kingdom. In 1688, the Privy Council issued a proclamation that prohibited spreading false information. With modern technology facilitating the distribution of information to a wide audience, and traditional channels of information being discarded for digital and social media platforms, the problem of false information being spread has become far more problematic than in 1688.
The government has noted that,
[i]n the era of fake news and concerted propaganda by hostile states, supporting a free media also means countering the incoming tides of disinformation. While it has never been easier to publish and receive information, it has also never been easier to spread lies and conspiracy theories. Social media offers a malign opportunity to whip up hatred and incite violence against vulnerable minorities.
Over time, the term “fake news” has developed a variety of meanings. To help provide clarity and consistency, the Digital, Culture, Media and Sport Committee recommended that the government not use the term “fake news” and instead use, and define, the words “misinformation” and “disinformation. The government has defined these terms as follows:
[D]isinformation [i]s the deliberate creation and sharing of false and/or manipulated information that is intended to deceive and mislead audiences, either for the purposes of causing harm, or for political, personal or financial gain. ‘Misinformation’ refers to the inadvertent sharing of false information.
II. Current Approach to Fake News
While there is currently no legislation that prohibits the online publication of fake news, the government is taking the issue seriously and is carefully investigating the impact of such news and the possibility of introducing legislation:
Traditional channels have been largely discarded in favour of digital and social media platforms. This is combined with a decline of trust in traditional sources of information and the era of so-called ‘fake news’. In parallel, the rules of the game have changed. The democratization of information, and the means to exploit it, has allowed hostile actors to exert disproportionate influence in competition with the public interest.
If ‘fake news’ is tolerated and becomes commonplace, there would be grave consequences for public attitudes, democratic processes and for the conduct of public life. The risks increase with the growth in the use of social media, but the associated problems would not be confined to such material. Without reassurance that the false and the genuine are being distinguished, there is a real risk of “contamination” across all sources – with public trust and confidence in public life declining further still, whatever the origin of the information or its channel of communication. As the problem gets worse, mere allegations will undermine the credibility of facts which actually are accurate.
The government considers that misinformation and disinformation are “fourth generation espionage” and are taking action on multiple levels to help counter this threat. It notes that a “whole-of-society approach to defensive and offensive measures in the information space is necessary to ensure protection against physical and cognitive attack and subversion of society, for example, through legislation and execution.” In the wake of Russian disinformation after the poisoning of Sergei Skripal and others in England, when the government “judged the Russian state promulgated at least 38 false disinformation narratives around this criminal act,” the Prime Minister announced that the intelligence services would be responsible for identifying social media platforms that distribute misinformation and disinformation under the recently introduced Fusion Doctrine. This doctrine provides the
Government must use the full suite of security, economic, diplomatic and influence capabilities to deliver our national security goals. This means strategic communications are to be considered with the same seriousness as financial or military options.
The UK already has considerable experience in strategic communications. Until recently, these had been directed towards domestic campaigns, such as to promote road safety or help stop individuals from smoking. The UK also has experience countering online propaganda and it, along with other international partners, launched the Counter-Daesh Communications Cell in 2015 with the aim of defeating Daesh (the so-called Islamic State). In 2017, the government noted that its activities resulted in a drop in propaganda output of 75%. Given the influx of misinformation and disinformation campaigns, in 2018 the government announced that it “will significantly expand the National Security Communications Team,” and this is discussed further below.
III. Legislation to Protect Objectivity of the News and Ensure Accuracy
As noted above, the UK currently does not have legislation directly applying to news provided exclusively online. A number of government departments, including the Electoral Commission, the Office of Communications (Ofcom) and the Digital, Culture, Media and Sport Committee, as well as an independent review, have been tasked with investigating the impact of fake news, and to provide recommendations on how to ensure that citizens have access to accurate, factual information.
The UK does not have a regulatory body that oversees the various social media platforms and online written content as a whole. The closest regulatory body to address these types of issues is Ofcom, established under the Communications Act 2003 to enforce content standards across television and radio broadcasters, including rules that require accuracy and impartiality, and the UK’s media and telecommunications companies. Ofcom has argued the regulation of television and radio broadcasting and lack of regulation of online content has led to “a ‘standards lottery’ that allows social media platforms to take advantage of lax regulation while traditional broadcasters have to follow tough rules on protecting audiences.” Ofcom has called for more regulation over social media, specifically Facebook, YouTube, and Twitter, particularly regulation that would require the platforms to quickly and effectively remove inappropriate content or be fined. Ofcom has further proposed that transparency should be increased across all platforms to enable audiences to understand why they are being targeted by certain material. Both Ofcom and the Digital, Culture, Media and Sport Committee have proposed that “the Government uses the rules given to Ofcom under the Communications Act to set and enforce contents standards for television and radio broadcasters, including rules relating to accuracy and impartiality, as a basis for setting standards for online content.”
IV. Reports into the Regulation of Online Content
A number of government reports have recently been issued that, among other issues, consider whether the UK should introduce laws to regulate the accuracy of news on online platforms. Summaries of two of the most recent reports relating to fake news are provided below. The government is currently working on a white paper, entitled Online Harms, which “will set out a new framework for ensuring disinformation is tackled effectively, while respecting freedom of expression and promoting innovation.”
A. Cairncross Review
In 2018, the Prime Minister requested that Dame Frances Cairncross undertake an independent investigation into “the sustainability of the production and distribution of high quality journalism [considering that] significant changes to technology and consumer behaviour are posing problems for high-quality journalism, both in the UK and globally.” The final report was published in 2019 and determined, among other things, that “[i]nvestigative journalism and democracy reporting are the areas of journalism most worthy and most under threat [and] . . . that, given the evidence of a market failure in the supply of public-interest news, public intervention may be the only remedy.” The Cairncross Review recommended that every online platform should have a quality obligation for any news on its platform and that the platform should be overseen by a regulator with investigative powers. The report made several other key recommendations, including the following:
- Introducing “codes of conduct to rebalance the relationship between publishers and online platforms”
- Placing online platforms under regulatory supervision
- Creating a new, independent, Institute to help continue the future provision of public-interest news
- Launching a new Innovation Fund to improve the supply of public interest news
- Introducing tax relief to encourage the payment for online news content
- Developing a media literacy strategy
The report further recommended an Institute for Public Interest News be established to focus on ensuring a robust system of local and regional news.
B. Digital, Culture, Media and Sport Committee: Fake News and Misinformation
The Digital, Culture, Media and Sport Committee released their final report on fake news and misinformation in late February 2019. The committee’s chair, Damian Collins, stated,
[w]e need a radical shift in the balance of power between the platforms and the people. The age of inadequate self regulation must come to an end. The rights of the citizen need to be established in statute, by requiring the tech companies to adhere to a code of conduct written into law by Parliament, and overseen by an independent regulator.
The report recommended that laws be introduced to establish a legal duty of care for companies that host online content and to provide
. . . for clear legal liabilities to be established for tech companies to act against harmful or illegal content on their sites, and calls for a compulsory Code of Ethics defining what constitutes harmful content.
An independent regulator should be responsible for monitoring tech companies, backed by statutory powers to launch legal action against companies in breach of the code. Companies failing obligations on harmful or illegal content would face hefty fines.
The committee recommended that any new regulator be funded through a levy on tech companies operating in the UK. The committee further recommended that a new category be created for social media companies that would tighten the liabilities of tech companies that are “not necessarily either a ‘platform’ or a ‘publisher.’ This approach would see the tech companies assume legal liability for content identified as harmful after it has been posted by users.” Ofcom responded positively to this recommendation of placing responsibility on platforms for the content that they host.
The report touched upon the issue of the influence of information provided on social media platforms on the electoral process, noting that electoral law has failed to take into account new technologies and the move to online micro-targeted campaigning, which has rendered the current laws “not fit for purpose.“ The committee recommended updating current electoral legislation to take into account current technology and include provisions that are “explicit on the illegal influencing of the democratic process by foreign players.” The committee called for electoral law to cover all political campaigning, and the inclusion of a legal definition of what constitutes digital campaigning and online political advertising, as well as requiring clear banners on all political advertisements and videos that identify the source of advertising and the advertiser. This echoes recommendations made by the Electoral Commission, which noted that, while electoral law covered the funding of online campaigning, the law should be updated to provide “more clarity over who is spending what, and where and how, and bigger sanctions for those who break the rules.”
V. National Approach to Countering Fake News
The government has stated it faces three challenges when tackling the spread of fake news:
- identifying misinformation and disinformation;
- choosing how to respond to such information; and
- ensuring that government information is available and “highly visible to the public” to reassure citizens of the facts, rather than work to rebut the false information.
Government strategy towards tackling “fake news” has two aspects: pre-emptive responses aimed to counter misinformation surrounding predictable events, such as elections, and responses that follow a predetermined plan for unforeseen events.
While the regulatory approach to countering misinformation is currently under consideration, and in the wake of a series of false stories posted online that were damaging to the Conservative Party and the government, the Cabinet Office established a Rapid Response Unit in April 2018 to help the government meet its policy of “reclaiming a fact based public debate.”
The Rapid Response Unit operates from within the executive branch of the government and is comprised of “specialists including analyst-editors, data scientists, media and digital experts.” The role of the Rapid Response Unit is to “monitor news and information being shared and engaged with online to identify emerging issues with speed, accuracy and with integrity.” The results of this monitoring “helps government understand the current media environment and assess the effectiveness of their public communications.”
The Rapid Response Unit has developed a model with the acronym FACT to help it identify and respond to misleading online content:
Find: Constantly monitor online news sources and publicly available social media posts to identify themes/discussions/stories that promote false and misleading information relating to HMG [Her Majesty’s Government]. This may be misinformation or disinformation.
Assess: Assess the scale of engagement with the risk identified and establish whether it is appropriate to respond to the content. Flag to relevant press offices and advisors, with a recommended approach to response. This is almost never direct rebuttal.
Create: Create appropriate content with the aim of rebalancing the narrative and promoting official HMG information. This may be a press office line, a social media post, or the creation of a new asset.
Target: Target content to ensure HMG information is highly visible and accessible to the public.
The government has emphasized that the Rapid Response Unit is not a rebuttal, or fake news unit. Instead, it focuses on checking trends in new sources and, where certain search terms indicate a bias in results, it works to optimize government pages to appear higher in search results or will activate social media content to help “rebalance the narrative and reassure those who were most engaged with the topic.” An example provided from the government demonstrates action the Rapid Response Unit took after it detected misinformation:
[F]ollowing the Syria airstrikes, the unit identified that a number of false narratives from alternative news sources were gaining traction online. These “alt-news” sources are biased and rely on sensationalism rather than facts to pique readers’ interest.
Due to the way that search engine algorithms work, when people searched for information on the strikes, these unreliable sources were appearing above official UK government information. In fact, no government information was appearing on the first 15 pages of Google results. We know that search is an excellent indicator of intention. It can reflect bias in information received from elsewhere.
The unit therefore ensured those using search terms that indicated bias— such as ‘false flag’—were presented with factual information on the UK’s response. The RRU improved the ranking from below 200 to number 1 within a matter of hours. Information on UKAID’s work in the region was also immediately amplified amongst audiences demonstrating the highest levels of interest in humanitarian issues affecting displaced Syrians.
The Rapid Response Unit works closely with the National Security Communications Team, particularly in times of crisis, to provide highly visible public information. Examples of this action include countering misinformation on the origin of the nerve agent used to poison former Russian operatives in England, and the implementation of targeted digital communications to audiences during military action in Syria.
VI. Ensuring Accurate Legal Information is Publicly Available
The UK has a robust system in place of publishing government information online. It provides its legislation free online via Legislation.gov.uk, and the courts and tribunals judiciary provide judgments online. Parliament also provides up-to-date copies of bills being debated before Parliament, along with the debates in Parliament and committee and other government reports.
The government is responding to the issues posed by fake news and is currently in the process of considering different approaches to regulating such information. Reports from committees and an independent reviewer has recommended that legislation be introduced to place liability on technology companies in the UK to remove content that contains misinformation or disinformation, or face considerable fines. The government will issue a white paper that will outline its approach on this subject in the fall of 2019.
Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
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Last Updated: 06/11/2019