A REAL CHALLENGE FOR LIBERAL DEMOCRACIES: “FAKE NEWS” OR DOMESTIC REGULATIONS TO COUNTER FAKE NEWS?

Abstract

This article aims to identify the greater threat to liberal democracies:
 “fake news” or domestic regulations intended to combat “fake news”.
 First, it assesses the impact of fake news on elections by analysing the
 2016 US Presidential election in which the world faced the modern
 version of fake news for the first time and the 2019 EU Parliament
 election in which a non-regulatory initiative was launched to challenge
 fake news. Then, it evaluates the impact of regulations on free speech
 by reviewing liberal democracies’ pioneering regulatory frameworks
 intended to combat fake news: French Law no. 2018-1202, Germany’s
 Netzwerkdurchsetzungsgesetz, and UK’s Online Harms White Paper.
 It argues that, while damage to the functioning of democracy caused
 by fake news during election periods has not been as great as was
 feared, since fake news has several, highly politicised meanings, legal
 frameworks tend to over-regulate, which may violate the freedom of
 expression according to the case-law of the European Court of Human
 Rights (ECtHR). The article concludes that enhancing media literacy and
 non-regulatory efforts globally would contribute much more to prevent
 the impacts of fake news and to protect freedom of expression than
 legislative frameworks could, and that adopting regulatory frameworks
 to tackle the online dissemination of fake news should be reconsidered.