ROME — “The internet is a new free marketplace of ideas” is the preferred metaphor of those within scholarly and public debate who take the view that the issue of fake news need not be addressed (and confronted) by public authorities (and public law). In the physical realm, as Supreme Court Justice Oliver Wendell Holmes wrote in his dissent in Abrams v. United States in 1919, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” In the digital world, this is even more true — the internet is amplifying the free exchange of and competition between ideas and opinions.
Consequently, according to the “marketplace of ideas” paradigm, if it is true that under the First Amendment there is “no such thing as a false idea” in the material world, the enhanced opportunity to express thoughts makes this is even more true in the digital word. In other words, public authorities should not have any role in dealing with the ever-growing phenomenon of fake news on the internet, because web users are supposed to have all the tools they need in order to select the most convincing ideas and weed through inaccurate news. This constitutes an expression of complete trust in the capacity for self-correction of the market for information.
Is there any alternative reading of the possible relationship between public powers, regulation and truth on the internet? Or should public law decline to play any role in the matter? In order to try to answer these questions, it is necessary to take a step back and look at what is truly hidden behind the “fake news” label.
A tentative first answer could include all information or news that shares a certain level of falsehood as part of the definition of “fake news.” This would include information that may be entirely made up or only partially false.
One group of scholars and policy makers argues that the authorities should not regulate fake news on the internet because users can disregard news that is not convincing or fake on their own.
Obviously, as with the “right to be forgotten” saga and many other issues that are experiencing a second lease on life in the digital era, the debate surrounding fake news is not new to the age of the internet. It’s just a question of the different degree of relevance and intrusiveness of this issue. It is evident in the global nature of the “new” technology that virtually every internet user is able to became an editor and spread and share sometimes false information. The corresponding but much greater potential impact of falsehoods on the internet is exponentially amplifying the urgent need to verify the sources of information in the post-truth digital era.
The real challenge is how such a process of verification should be conducted. According to the champions of the “marketplace of ideas” metaphor, since, by definition, scarcity of resources is an analogue and not a digital limit, with the result that there is no need to protect pluralism of information on the internet, legal rules (and especially public law) should take a step back in the name of the alleged self-corrective capacity of the information market. Just as the economic market knows no test of product “validity,” but allows demand to drive supply, the best way of dealing with the phenomenon of fake news in the information market is to rely on the market to distinguish between viable and shoddy products and to secure the widest possible dissemination of all news, including news from contradictory and unreliable sources.
This argument is not convincing, in my opinion, for at least two reasons, which have been developed in detail in my new book, “Words and Power,” which I wrote with Oreste Pollicino and Stefano Quintarelli.
1. Our attention and time continue to be scarce products.
It may be the case that the problem of scarcity of technical resources does not affect the internet, but this is not true of our attention span and the value we place on our time. In fact, while the amount of information available is growing, the 24 hours in the day cannot be extended. Against this background, when faced with information overload, the temptation for users will be to search for news, information and ideas that enhance their previous thoughts and preferences, leading to group polarization, which has been succinctly described by Cass Sunstein.
In other words, in the digital world, much more so than in the physical world, deliberation tends to move groups and the individuals comprising them towards a more extreme point in the direction indicated by their own pre-deliberation judgments. The result seems to be that, quite paradoxically, despite (or perhaps precisely because of) the unlimited amount of information on the internet, there is a less pluralistic exchange of different opinions than in traditional media, where the scarcity of sources is still an issue.
2. There are differences between interpretations of free speech in Europe and the U.S.
It is reasonable to ask whether the “marketplace of ideas” metaphor is well suited to the scope (and limits) of protection for free speech under the European constitutionalism paradigm. As is well known, protection for freedom of expression in Europe is more limited than in the U.S. However, it is not simply a question of differences in scope, but also of difference in focus. While the First Amendment mainly addresses the active dimension to the right to freely express one’s own thoughts, Article 10 of the European Convention on Human Rights and Article 11 of the European Union Charter of Fundamental Rights, emphasize the passive dimension to the right to be pluralistically informed.
In this respect, it could be argued that fake news is not constitutionally covered by the European vision of free speech. Or to put it differently, the European courts would find it very difficult to accept the view of the U.S. Supreme Court, which holds that: “Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”