*NOTE FROM MAY 2021: This article was originally published in April 2018. Since then, some of Maldita.es’s views on legislating against disinformation have evolved. We still believe that regulation alone will not solve the problem of disinformation, but we also believe it can help combat it in certain ways: by promoting transparency and accountability among digital platforms, investing in education, and approaching any reform with the broadest possible consensus and full respect for freedom of expression. You can learn more about our position on this issue by reading our document “Disinformation and Legislation: Risks and Opportunities.”
At Maldita.es, we believe we are at a key moment in the fight against disinformation. Political parties are pointing to legislation as the way to combat it. From our perspective, this path is problematic due to its lack of empirical foundation, its risk of censorship, and its very likely obsolescence.
In our opinion, rushed legislation in the fight against hoaxes is short-sighted and dangerous for freedom of expression and of the press. We need to study the problem of disinformation in order to solve it: to determine who creates false content and why, how it goes viral, and what real, measurable impact it has on our society.
Instead of legislation, we propose educational measures, fostering an anti-hoax community, and making use of technology. The European Commission, in its final report prepared by the High-Level Expert Group on “fake news” (which includes Maldito Bulo), places special emphasis on the fundamental right to freedom of expression and clearly rejects any attempt to censor content. It warns that legislation, if ever implemented, “needs to be based on very precise definitions that address the causes of disinformation, while ensuring due legal process along with the responsibility and proportionality of the measures.”
Disinformation is a multifaceted problem; it does not have a single root cause and therefore does not have a single solution. For this reason, we would like to pose a series of questions to the political parties seeking to pursue a legislative path against hoaxes:
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Who will decide what is real and what is not?
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Who will decide what gets fact-checked and what does not?
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What is “fake news”? Can an opinion be considered fake news? How should a satirical piece that goes viral as real be classified? Who will determine what is satire and what is not?
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Who will order the removal of content?
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If it is a judge, who will report false content to the public prosecutor? Any user? An institution?
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Will websites that publish false news be shut down? Who will order it? What qualifies as a fake news website? What percentage of its content must be false?
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If such websites that profit from publishing false news are not based in Spain but target Spanish citizens, will access to them be blocked from our country?
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How do they plan to stop false images, fake WhatsApp chains, screenshots that do not correspond to reality, and other forms of disinformation not directly linked to a website or URL?
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Will they seek commitments from technology platforms to share data?
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Will they invest in media and digital literacy?
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Will they recognize the community of verifiers and fact-checkers as essential actors in finding solutions to this problem?