By Nathalie Goulet, Senator & Dan Shefet, Lawyer
Fake News Newspaper on desk in the office
Manipulation, deceit, lies, rumors and gossip have been around since the dawn of mankind.
Even the Bible addresses the problem: You shall not spread a false report (Exodus; 23:1)
Greek mythology had a “goddess of rumours.” Her name was Fame and she was depicted as spreading false news destabilising all those that listened to her trumpet.
For the Roman historian the eponymous term « Tacitean Rumours » was coined.
The use of fake news for propaganda purposes is well known and an vivid example is the purported crucifixions of allied soldiers by the Axis powers which caused widespread panic to both troops and civilian population.
During World War II a specific “Rumour Project” was launched under the auspices of the Office of War Information pursuant to Executive order of June 13, 1942. The purpose was to provide “an informed and intelligent understanding of the status and progress of the war effort, war policies, activities, and aims of the United States government”.
Rumours about Jews poisoning wells and devouring Christian children during the plague in the 14 century was another favourite bit of fake news.
The Harlem Riots in 1935 ( caused by false rumours about the assassination of a Porto Rican born child) is a classic. No assassinating had taken place . The boy was fine. He had suffered no harm, yet all hell broke loose on the back of pure fiction.
These days, rumors are ubiquitous and due to modern technology extremely powerful. We may be more tech savvy than at any other time in history , but we are still just as gullible and easy to manipulate as our forefathers.
Remember the tweet (April 23, 2013) which claimed that the White House was under attack and President Obama seriously injured ?
The markets crashed. Billions of dollars were lost in record time. The world faced chaos. As we know it was a hoax, but let’s learn from this event and let’s learn from history.
Why has fake news suddenly become a theme of major concern ?
The answer is of course that the perceived interference in democratic processes via the internet arguably increases the reach, impact and risk of willful misrepresentation of facts for all kinds of ulterior motives. Paradoxically the internet’s democratization of content providers and wide audience has proven a danger to democracy.
Some of the he Internet Service Providers have adopted a pro- active approach to the problem of Fake News.
This should be no surprise since their business model hinges upon simple clicks. Their power as well as their demise is just one click away.
Fake news is bad news ton an industry that bases its very existence on the attractiveness of clicks. If ISPs are not seen as acting preemptively it won’t take long before public opinion may no longer to support corporations that are deemed to undermine democratic values.
It is easy to imagine the damage a “Fakebook” image would do to those that live and thrive on clicks.
The public sector also has its part to play and responsibilities to assume.
An initiative was taken before the French Senate by Senator Nathalie Goulet and Dan Shefet (Lawyer acting as the Senator’s advisor ) proposing the designation of an Internet Ombudsman.
The problem is the following: When confronted with a request of removal, deletion or blocking or the interception of content which may be fake ( or for other reasons hurtful) ISPs may not be in a position to determine the appropriate course of action. Taking down content may violate protected free speech and leaving it up may cause devastating consequences.
If our democracies wish to engage the private sector in this effort we need to give them a way out on difficult judgement calls.
The ever-growing pressure for liability of Internet actors for the content they host, disseminate, and make accessible must be supported by the establishment of guidelines issued by state authorities.
In the described circumstances, the bill’s objective is twofold: (i) give Internet intermediaries which are private sector companies the necessary support for the good functioning of their new mission which refers to a delegation of governmental duties and obligations and to (ii) establish an immunity from prosecution, both civil and criminal regarding decisions made by the latter actors on the basis of the Ombudsman’s Assessment.
From a pragmatic point of view, an immunity would encourage Internet actors to embrace a proactive behavior in the processing of requests to remove, delete or block a content or URL without the fear of legal consequences while at the same time avoiding the duty to judge to which extent these requests violate free speech. In essence, the bill proposes to put in place efficient mechanisms that will allow the private sector not to find itself in an impossible situation making judgment calls which may open up for litigation from either the author of the content or the “victim” (depending on which way the judgment call goes).
To support these actors to carry out their mission, the bill aims at creating an Ombudsman which will have jurisdiction to deal with requests directly submitted by actors of the Internet in case of doubt on the legality of a user request to remove, delete or block a content or URL accessible on a platform, search engine or made available through an ISP.
Practically, the Ombudsman would intervene in the event that an actor of the Internet would deem it necessary to refer to the latter institution because of a lack of expertise needed to deal with a user request. In this case, the concerned actor will launch the procedure by submitting before the Ombudsman a request for an Assessment of the content (in other words an opinion).
The latter would have seven days to provide a final Assessment on its qualification of the relevant content.
The Content Qualification Assessment Procedure will be non-binding. It should be highlighted that the assessment albeit not binding will provide legal immunity in case it is followed.
In light of the above, the proposed mechanism would be (1) government delegation to private sector and (2) the private sector would be in a position to engage government (through the Ombudsman) in its obligations to provide specific guidance.
Extended ISP and platform liability seems to be unavoidable for various reasons (be they legitimate or not). There is strong and growing political pressure in many countries already.
The initiative would allow the effects of delegation to be mitigated and relieve the private sector from a difficult and contentious judgment call (similar to that inherent in the right to be forgotten obligations).
The bill was very recently made the subject of a Motion for a recommendation which obtained the necessary signatures of the Parliamentary Assembly of the Council of Europe on January 24thand which would create ultimately an European based internet institution.
A truly cooperative effort by the private and public sectors is what is required in order to protect the credibility of the net, our democratic institutions and – lest we forget - our values.