Internet governance and democratic states

The return of the state? Power and legitimacy challenges to the EU’s regulation of online disinformation

Julia Rone

Introduction

In November 2018, at the Internet Governance Forum (IGF) Opening Ceremony, French President Emmanuel Macron shared a new vision of the state’s role in internet regulation. Macron argued that states could and should regulate the internet and were the actors in the best position to do so (Macron 2018). According to the French leader, the choice between a laissez faire internet, driven by corporate rule (what he referred to as a “Californian internet”), and a compartmentalised internet, “entirely monitored by strong and authoritarian states” (a “Chinese internet”), is a false choice. Democratic states, he argued, should step in to regulate the internet, while preserving respect for human rights and freedom of information. Macron’s speech seemed to suggest that there is a third, European, model of regulating the internet.

Several months later, in March 2019, Mark Zuckerberg, the CEO of Facebook, the social networking company with more than 2.45 billion users, published an op-ed in The Washington Post claiming that the internet “needs new rules” (Zuckerberg 2019). Considering that Facebook had argued against regulation for years (Kayali 2019), it seemed that finally the company acknowledged the necessity of government regulation.

In a sense, these two interventions, one by the leader of a G7 country and one by the CEO of the world’s seventh most valuable private company, both point to a “return of the state” in the field of internet governance, presupposing public control over what was once generally considered the domain of private companies in the West. What is more, it suggests a particular “return of the democratic state”, different from existing authoritarian attempts at controlling the internet, and has met as such serious challenges along the way.

This chapter narrows down the general question of the nature of the “return of the state” in internet regulation to focus in particular on the regulation of online disinformation. It focuses explicitly on the case of the European Union, where the topic of disinformation has gained widespread prominence in the aftermath of the Brexit referendum and amid fears of Russian intervention in the 2019 European elections (Apuzzo and Satariano 2019; Cadwalladr 2017; Tucker et al. 2018). We pose several key questions: Who is carrying out the regulation of disinformation in the EU and what power does this require and give them? What legitimacy challenges arise in the process and how are they addressed? Has the EU managed to offer a third model of internet regulation, going beyond both the Californian model of private-sector-led regulation with minimal government regulation and the Chinese model of centralised control?

While disinformation has been a global problem for internet regulation, much of the literature so far has focused on the US experience and debates (Mourao and Robertson 2019; Nyhan 2019; Tucker et al. 2018). This chapter argues that focusing on the EU could provide a novel and important perspective to the global problem of regulation. The EU has been the most active democratic jurisdiction when it comes to state involvement in internet regulation in general. The implementation of the General Data Protection Regulation in May 2018 has been a crucial step in legislating data protection not only in the EU but also worldwide. In this sense, if democratic states’ attempts to regulate disinfomration would be successful anywhere, the EU would be a most likely case. Second, the EU has aimed to be a soft-power exporter of regulation to other parts of the world. Consequently, any developments in the field of regulating disinfomration in the EU are likely to influence other countries to varying extents. In this sense, it is important to study the EU as a potential trendsetter in global internet regulation. Third, the multilevel governance structure of the EU poses specific challenges and provides a great test case to trace the importance of state power and ambitions in attempting to address internet regulation - a field currently dominated by private players such as Facebook. EU states with big markets such as France and Germany have been much more ambitious in trying to pressure Facebook and Twitter to accept regulation than smaller EU member states. In principle, all sovereign countries are equal when it comes to regulating internet corporations, yet in practice some are more equal than others. We are likely to observe similar power dynamics between states and corporations also in non-EU countries.

To be sure, regulating disinformation - defined as intentionally deceptive falsehood (Tandoc, Lim and Ling 2020, 3) - has been only one field of regulation in a wider EU effort to deal with hate speech, terrorist speech, as well as other platform-related issues such as competition and taxes in the digital environment. Unlike hate speech or terrorist speech, however, disinformation is not illegal in most EU countries and this reality has posed serious problems when it comes to legitimating stricter forms of regulation of internet companies, including legislation. If the EU and its member states are to put forward a model of internet regulation based on democracy and human rights, the question of legitimacy is fundamental. Beyond the issue of political power and clout - that is, whether states can actually make giant US companies comply with their regulations - this need for democratic legitimacy creates an additional limitation to what EU states and institutions can do and leads them to adopt strategies of decentred governance in which public and private actors cooperate - and conflict - in defining the problem of disinformation and addressing it. The chapter’s analysis of the regulation of disinformation uses the lens of decentred regulation (see, e.g., Black 2001) that places important decision-making power in the hands of private actors and appears far from a unilateral return of the state as advocated by President Macron.

The return of the state? 173

Focusing on the dynamics among public and private actors and, in particular, the agency of private actors within decentred regulation in the context of internet governance, this chapter introduces two concepts: preemptive cooperation and conflictual cooperation. Preemptive cooperation refers to private actors’ readiness to participate in the early stages of drafting state regulation in order to influence it in their preferred direction, usually to weaken it. Cooperation thus acts as a preemptive measure that helps companies avoid unfavourable regulation. Conflictual cooperation, on the other hand, refers to the ways in which private actors enter into conflict with public actors or with each other in the process of cooperation. In short, cooperation does not put an end to regulatory' conflicts but allows them to simmer contained within an established network of relations. Together, these concepts provide us with a more nuanced means to understand how decentred regulation may operate within the realm of internet governance.

The chapter proceeds as follows. To begin, it discusses decentred regulation and digital sovereignty' generally and the EU’s approach to digital sovereignty and how it differs from approaches taken by China or Russia in particular. It then analyses the importance of power and democratic legitimacy to understand the challenges the EU has faced in its recent attempts to regulate disinformation. Next, it focuses on the issue of disinformation and problematises the dangerous trend towards political and legislative bundling together of different types of harmful content such as disinformation, hate speech, and defamation. Importantly, it questions definitions of disinformation that place an excessive focus on foreign actors intent on disrupting elections while relatively neglecting the role of domestic, especially far-right players. The third section of the chapter discusses the concrete actions taken by the EU and its member states in order to regulate disinformation. It highlights initiatives by individual member states, most notably France and the UK (before Brexit), and by' EU institutions. We then move on to analyse the complex instances of preemptive and conflictual cooperation between private global platforms and public actors in the EU. The final section of the chapter offers an overview of some of the blind spots of regulatory efforts so far on the basis of interviews with experts. We also offer a suggestion for the broader field of internet regulation based on some of the challenges in regulating disinformation in the EU, namely a possible way out of the legitimacy dilemmas of both state sovereign regulation and decentred regulation through an engagement with parliamentary' and popular sovereignty. Parliamentary discussions, as well as public consultations and more deliberative forms of public debates both within nation states and across the EU, are among the important way's to provide much needed democratic legitimacy to the tough decisions involved in internet regulation.

Challenges of power and legitimacy in decentred regulation versus digital sovereignty

President Macron’s call for more state sovereignty and for democratic states to move beyond the “Californian model of the internet” is essentially' a call to seek an alternative to the decentred regulation that has been at the centre of researchand governance practice for more than 20 years now (see ten Oever, this volume). Indeed, when we talk about a “return of the state” in internet regulation, and especially in the regulation of content, we need to emphasise that this is not a return in the sense of going back to a situation from the past but rather a return of a player that has been relatively marginalised (see Cavalli and Scholte, Santaniello, and ten Oever, all this volume). Since the 1990s, the dominant model of internet regulation in democratic states has been decentred, or networked, regulation, which involves “a shift in the locus of the activity of ‘regulating’ from the state to other, multiple, locations, and the adoption on the part of the state of particular strategies of regulation” (Black 2001, 112). Accompanying this recognition of non-state actors’ role is the understanding that regulatory strategies include non-state-centred forms of governance like industry self-regulation. Forms of decentred regulation have become increasingly common in a wide range of policy fields, from the production and distribution of agricultural commodities (McNaughton and Lockie 2017) to global finance (Andenas and H-Y-Chiu 2014; Scholte 2013) and, of course, the governance of new and emerging digital technologies (Leiser and Murray 2017).

While both the concept of decentred regulation and the related concept of selfregulation have their origins in theories of autopoietic systems, that is, those systems capable of reproducing themselves from within themselves, related concepts such as “networked” or “nodal governance” have been traced rather to the work of Foucault on power perceived as relational and circulating through networks. Drawing on a wide range of authors, Farrand and Carrapico (2013, 359) emphasise that in networked regulation “political decision-making is not restricted to formal governmental institutions, but is the result of the creation, construction, and establishment of policy networks.” The concepts of decentred and networked regulation both highlight the multiplicity of actors involved in regulation and the blurring of the distinction between public and private actors. As such, these concepts are starkly opposed to newly emerging doctrines of digital sovereignty that have become increasingly relevant in the past few years.

The use of the term “digital sovereignty” in the ProQuest collection of databases has increased from six mentions in the period before 2011 to 239 mentions in the period from 2015 to 2018 (Couture and Toupin 2019). This term, as well as the related tenns “information sovereignty” and “data sovereignty”, have been used in a broad range of ways that go beyond narrow conceptions of authoritarian control. Analysts and activists have invoked various and sometimes diametrically opposed discourses such as “indigenous digital sovereignty” (Kukutai and Taylor 2016) - related to indigenous populations’ control of technologies and digital infrastructures - and state digital sovereignty - related to the state’s capacity to control crucial technical infrastructure and the flow of information within and across its borders (Kukutai and Taylor 2016).

This chapter focuses above all on digital sovereignty, understood as state digital sovereignty, a concept that often comes with a strong geopolitical flavour. While states have traditionally controlled the flows of goods and people over their borders, the idea that the flows of data and content over the internet, or the internet’s

The return of the state 1 175 infrastructure itself, can (or should) be controlled was put forward explicitly as a state doctrine by China only in 2010 (Powers and Jablonski 2015,169). In 2015, meanwhile, China and Russia signed a cyber-defence agreement whose purpose was to limit the use of information technologies designed to “interfere in the internal affairs of states; undermine sovereignty, political, economic and social stability; [and] disturb public order” (Margolin 2016). With this move, China and Russia effectively posed a challenge to the dominant American internationalist approach to norms of digital governance. It is this particular understanding of digital sovereignty that Macron referred to when talking about the “Chinese model” of the internet.

Yet, just as sovereignty is the property not only of authoritarian states but of all states in the international state system, the advocacy and pursuit of digital sovereignty is not only the purview of authoritarian states. The doctrine of digital sovereignty started gaining traction in Western democratic countries after the revelations by Edward Snowden that the US National Security Agency, together with its global partners, had engaged in mass surveillance of both foreign nationals and US citizens. The leaks showed that even the phone of German Chancellor Angela Merkel had been hacked (Bauman et al. 2014). In response to these revelations, countries such as Germany and Brazil started contemplating data localisation initiatives (Hill 2014). By 2019, discourses on digital sovereignty made their way into European Union policy with the EU announcing the launch of a new project called Gaia-X that aims to achieve “cloud independence” and allow local providers to compete with dominant US cloud providers (Meyer 2019).

Another crucial watershed in Western political opinion, this time with respect to content regulation, came with Brexit and the election of Donald Trump in the United States in 2016. Major newspapers quickly explained away these complex political developments as the result of fake news and foreign disinformation, leading to increased attention to the topic (Cadwalladr 2017; Viner 2016). In the aftermath, an almost Cold War degree of rhetoric raising concerns about foreign interference flourished. Since then, both the US and the EU have expressed the desire to establish some version of digital sovereignty over flows of information within and across country borders. While China and Russia have a long history of censoring and regulating content online, there was little appetite for such initiatives in the West. Child pornography and terrorist speech, for example, have been the object of regulatory battles since the 1990s (Wagner 2013), but monitoring political speech online was generally considered a no-go zone. Following Brexit and Trump's election, the 1990s-era cyber-libertarian belief that the internet represents the frontier of ultimate freedom from the state ceded ground even more to a generalised acceptance that greater state regulation of the internet is necessary. All this shows that digital sovereignty is not necessarily an autocratic concept and encompasses more than what a narrow invocation of the “Chinese model” of the internet would suggest.

What Macron’s speech offered as an alternative to the “Chinese model” seems to be a different, “European”, version of digital sovereignty, applicable in democratic states, that respects human rights and democratic process. The problem,

however, is that achieving this is easier said than done. To begin, getting big US corporations to comply with rules that might be costly to them and technically challenging to implement requires considerable state power and capacity, including technical expertise. Second, as already mentioned, while disinformation may not be socially desirable, it remains legal, at least in the EU. Furthermore, there is far from a public consensus on how it should be regulated, with far-right actors calling the EU Commission “Ministry of Truth” because of its attempts to regulate disinformation (Mooney 2019). Due to these problems of both power and legitimacy, the EU and its member states have found it difficult to regulate the digital sphere. In fact, it is impossible to understand the challenges the EU has faced in regulating disinformation, without paying attention to the concepts of power and legitimacy and the ways they relate to each other.

For the purposes of this chapter, we define power as the ability of the state or any other agent “to get others to act in ways that they desire even when the subject does not want to do what the agent wants him to do” (Christiano 2012). When it comes to regulating disinformation, particular actors, such as states, would have power if they manage to get other actors, such as private companies, to do what they want them to do. States’ regulatory power in this context comes to a large extent from the size of their markets, as larger states can employ the threat of market access to compel compliance from corporate actors. Following this logic, countries such as Germany and France, with bigger markets, would be more persuasive than smaller countries such as Slovenia and Bulgaria, for example. But state regulatory capacity is not only about country size. It also has elements of expertise. Similar to other highly technical areas of regulation, such as stock markets, in order to be able to tell internet companies what they should do, states need to know better how these companies operate, including what algorithms they use. Yet, internet giants have been opaque about their internal operations, with their algorithms famously protected by trade secrets. Of course, larger states such as Germany and France can more easily regulate the internet giants even without knowing the intricacies of their operations, as was the case with Gennany’s 2017 law to compel Facebook to remove hate speech from its platform (Lomas 2017). Nevertheless, the regulation of disinfonnation faces problems not only of power but also of legitimacy, further diminishing the options of what even big democratic states can do.

A simple definition of legitimacy points to legal validity and conformity with the law. The three key dimensions of legitimacy in democratic states, as outlined in the literature, are 1) democracy, referring to “the structural aspects such as the representation of the population and the separation of powers”; 2) identification, pointing to “the popular acceptance of the project of the political authority that governs”; and 3) performance, defined as “the relation of the political system to the ends or purposes it should serve and the effectiveness of its decision-making procedures” (Beetham and Lord 1998, as quoted in Voennans, Hartmann and Kaeding 2014, 12).

If a powerful authoritarian state such as Russia or China attempts to regulate the internet, they may have the power to coerce cooperation. However, even

The return of the state? 177 authoritarian states face limitations, as the chapters in this volume by Jia, Luo and Lv, and Stadnik show. In contrast, if the EU and its member states attempt to regulate the internet, power is not enough: Democratic legitimacy is also crucial. This is where the main difference from the so-called Chinese model becomes clear. Following the definition of legitimacy presented earlier, in order to be perceived as legitimate, regulatory7 arrangements on disinformation in the EU are expected to ensure democratic participation, gain popular acceptance, and achieve the goals they set for themselves.

It is because of the demands for legitimacy, coupled with the perception -accurate or perceived - that internet firms have essential, specialised knowledge for the regulation of disinformation, that the EU Commission refrained from attempting state-centred regulation and involved private internet companies in the process of regulation instead. Yet, as the EU’s response shows, the composition of state/non-state actors matters in terms of representativeness. The EU’s efforts focused too closely on private companies and experts and failed to involve ordinary7 citizens in a meaningful and sustained way7 in both defining where the problem with disinformation lies and in devising ways to solve it. The multistakeholder model of decentred governance that the EU Commission fell back on has been often held as a best practice in internet governance, but numerous authors have noticed it leads to window-dressing and the privileging of certain actors over others (Buxton 2019; Donders, Van den Buick and Raats 2019; lusmen and Boswell 2016; Schleifer 2019). This chapter shows that this has been very much the case also when it comes to regulating disinformation.

Before moving on to discuss current instances of regulation of disinformation and the legitimacy problems they pose, a short overview of the current state of discussions on disinformation is needed.

Defining “disinformation” and justifying its regulation

In his IGF speech, President Macron claimed that “[O]ur governments, our populations will not tolerate much longer the torrents of hate coming over the internet from authors protected by anonymity7 which is now proving problematic” (2018). Macron’s examples of problematic content in his IGF speech refer above all to hate speech and terrorist speech (see also Santaniello, this volume). The word “disinformation” is not mentioned a single time, while fake and doctored images are mentioned once. Nevertheless, it is very7 likely that disinformation was on his mind: Only five days after this speech, France introduced a new law targeting fake news (Fiorentino 2018).

Macron’s speech is indicative of the fact that in many contexts the regulation of disinformation is justified by analogy7 to the need to regulate other types of speech. For instance, a 2019 consultative paper of the UK government regarding online content regulation (Department for Digital, Culture, Media & Sport and Home Office 2019) identified as “online harms” not only familiar categories such as terrorism and child sexual abuse but also “revenge porn, hate crime, harassment, promotion of self-harm, content uploaded by prisoners, disinformation, trolling, andthe sale of illegal goods” (Volpicelli 2019). Needless to say, there are massive differences among these different types of content. This inclusion of different types of content (as objectionable as they may each be) together as “online harms” brings to mind the argument of Richard Stallman (2006), the famous founder of the Free Software Foundation, that bundling together trademarks, copyright, and patents under the label intellectual property' is a “seductive mirage” that favours the interests of big companies. Similarly, we can claim today that speaking of “harmful content” in general is a “seductive mirage” that could justify state censorship of problematic but not necessarily illegal content “by analogy'” with actually illegal content, without actually making the problematic content illegal.

Disinformation is a perfect example of such problematic-but-not-illegal content: It has been used for centuries by political actors to shape or promote particular policy options. Disinfonnation cannot simply be lumped with “hate speech”. Hate speech is regulated in the EU because of the threats it poses to human dignity' as a fundamental right, protected by' Article 1 of the EU Charter of Fundamental Rights (Belavusau 2012). But there is no such corresponding justification when it comes to disinformation. The European Commission’s Action Plan against Disinformation (High Representative of the Union for Foreign Affairs and Security' Policy 2018) has justified combatting disinfonnation above all by asserting its incompatibility’ with the normal functioning of the democratic process. Furthermore, a key criterion for identifying disinfonnation has been the intent of content producers to spread disinformation to “intentionally cause public hann or for profit” (High Level Group on Fake News and Online Disinfonnation 2018b, 10). But how does one decide what constitutes public hann and threatens the democratic process in the absence of concrete criteria? And who decides what these criteria are? For example, the UK’s Parliament report on fake news and disinfonnation points to the removal by Facebook of 289 pages and 75 accounts that “posted about topics like anti-NATO sentiment, protest movements, and anti-corruption” (Digital Culture, Media and Sport Committee 2019, 70). Topics such as anti-NATO sentiment, protest movements, and anti-corruption are certainly highly political and politicised, y'et viewed at this high level it is not clear to what extent they may be considered disinformation. Tire presupposition that it is easy to define “public harm” leaves the door open for censorship and using “fake news” as a label (Egelhofer and Lecheler 2019) to target legitimate political speech that might actually be expressing dissenting views.

While fake news has been part of public debate for centuries (Burkhardt 2017), the qualitative difference we have observed in the 2010s has been the ease with which fake news can spread on online platforms that are designed to maximise users’ attention in order to extract revenue. The dominant liberal narrative on disinformation presupposes that foreign actors, such as Russia, spread misleading and inaccurate information online in order to cause public harm and sow division in the EU (High Representative of the Union for Foreign Affairs and Security' Policy 2018). What this liberal narrative does is to present disinformation, first, as a problem of accuracy above all and, second, one that is caused by external actors. With respect to accuracy, the issue of disinformation is not as clear-cut as “real” versus “fake” news. Recent academic studies of fake news websites in the US context, for

The return of the state? 179 instance, have shown that only a few of the news items published on them can be classified as completely fake, while most involve genre'blending, mixing sensationalism, click-bait, and hyperpartisan political content (Mourao and Robertson 2019). Furthermore, the “accuracy” narrative on disinformation tends to ignore the extent to which the supply of disinformation is driven by economic motives: “fake news” content can be a profitable way for advertising-based social networks to encourage users’ attention and thus increase advertising revenues.

With respect to the actors driving the problem, the liberal narrative also tends to ignore that the rising problem in EU politics is actually bottom-up propaganda by domestic far-right actors such as Politically Incorrect News in Germany or VoxNews in Italy that spread highly biased, but not necessarily untrue, political content (Rone 2019). We should not forget that for the rising far-right movement in Europe disinformation is actually spread by mainstream media, as evidenced in the “lying press” chant featured prominently in far-right mobilisations in Dresden, Germany, and beyond (Berntzen and Weisskircher 2016). Thus, the far right offers its own “alternative” media online.

Finally, as has already been noted, the nature and extent of the hanns caused by disinformation remain unclear. There is still no conclusive research on the effects of disinformation on voting patterns, either in the United States or in the EU (Nyhan 2019), bringing into question the rhetoric around the issue. Disinformation may be a problem, and there is a consensus that there is a problem, but there is neither consensus nor clarity' about what exactly the problem is - is it foreign disinformation, or foreign propaganda, or domestic disinformation, or propaganda, full stop? What effects does it have? The problem is multifaceted, with nuanced effects, which just makes it even more difficult to address in the absence of a solid legal basis.

The implications of all these difficulties around defining disinformation and the resulting potential for undesired censorship are crucial obstacles for securing the legitimacy of democratic government intervention in this area. They are also a key' reason that EU regulation in this field to date has tended to take a light touch in the EU and most of its member states. In the next section, we provide an overview of existing public efforts to regulate disinformation before discussing the same issue from the perspective of private actors in the section on preemptive and conflictual cooperation.

Power and legitimacy as limiting factors for EU online disinformation regulation

Different EU states and EU institutions have opted for very' different strategies to deal with disinformation. As a result, the current regime of regulation of disinformation has been quite complicated, with no common unifying strategy'. While some strategies have involved greater degrees of interventions by the state, in none of the cases considered have states simply told companies what to do. And in all cases, both the capacity' of the state to implement its preferred strategy' and the need for democratic legitimation with respect primarily' to censorship fears have limited the actions they were able to undertake.

One of the first proactive attempts to deal with disinformation in the current context was initiated by the European Council in the aftermath of the Russian military intervention in Crimea in 2014- Created in March 2015, the EastStrat-ComForce focused on proactive communication to support EU delegations in six countries from the EU’s Eastern neighbourhood - Armenia, Azerbaijan, Belarus, Georgia, Moldova, Ukraine, and Russia itself. The plan’s goal was to provide alternative sources of information different from Russia’s sources, communicate and promote “EU Policies and Values”, support independent media, and increase awareness of “disinformation activities by external actors” (Jozwiak 2015). Among the products of the EastStratComForce is the fact-checking website EUVsDisinfo (https://euvsdisinfo.eu), which regularly publishes fact checks and flags perceived “disinformation”. Nevertheless, the EUVsDisinfo project raised substantial controversy when three Dutch media outlets sued the EU because the fact-checker wrongly accused them of spreading disinformation (Nijeboer 2018). After receiving the subpoena, EUVsDisinfo removed the three articles from their database without informing the relevant media and without providing information about the retraction or apologising for the mistake (Nijeboer 2018). The website continues to function as of July 2020, but as a result of this case it now focuses on fact-checking news produced outside of Europe (BBC Trending 2019). This case demonstrates clearly that fact-checking as a regulatory’ practice is only as effective as the complaints are accurate and based on clear criteria. In the absence of democratic participation in defining disinformation and a clear consensus on what disinformation is, attempts to remove content flagged as disinformation risks raising serious fears over censorship, threatening the policy’s legitimacy.

Aware of such democratic legitimacy challenges with respect to regulating disinformation, the European Commission adopted a more careful approach and attempted to involve different groups in both defining and addressing the problem of disinformation. Such an approach followed the long-established tradition of decentred regulation of the internet, in which private actors have a key role. In late 2017, the Commission announced the creation of a High-level Expert Group that gathered 40 representatives of social media platforms and media organisations, citizens, civil-society organisations, and experts such as journalists and academics to tackle the issue (High Level Group on Fake News and Online Disinformation 2018a). Furthennore, the Commission tasked with drafting a self-regulatory’ code of practice a multistakeholder forum on online disinformation, composed of online platforms, leading social networks, advertisers, and advertising agencies (Multistakeholder Forum 2018). The code of practice on Disinformation was signed by Facebook, Google, Twitter, Mozilla, and various trade associations, such as the European Association of Communication Agencies, the Interactive Advertising Bureau Europe, and the World Federation of Advertisers. The signatories committed to taking actions in the following five areas:

Disrupting advertising revenues of certain accounts and websites that spread disinformation; Making political advertising and issue based advertising more transparent; Addressing the issue of fake accounts and online bots;

Empowering consumers to report disinformation and access different news sources, while improving the visibility and findability' of authoritative content; [and] Empowering the research community’ to monitor online disinformation through privacy-compliant access to the platfonns’ data.

(Lomas 2018)

In addition to this code of practice, on 5 December 2018 the European Commission and the High Representative of the Union for Foreign Affairs and Security’ Policy presented the EU’s Action Plan Against Disinformation that focused on improved detection; coordinated response; online platforms and industry’; and raising awareness and empowering citizens in order to build up the EU’s capabilities and strengthen cooperation between member states and the EU (High Representative of the Union for Foreign Affairs and Security Policy 2018). As an implementation of the action plan, the European Commission also launched the European Observatory’ against Disinformation, bringing together fact-checkers, media organisations, researchers, social media innovators, and policy makers from across the EU. Several campaigns on digital literacy were also launched including the All-Digital Week, held the week of 25 March 2019 (All Digital 2019).

All things considered, it is quite clear from these actions that the Commission refrained from strong unilateral regulation and actively tried to include private companies in defining what is to be regulated and the regulation process itself. This more light-touch approach when it comes to regulating disinformation is in clear contrast to the multiple fines the European Commission imposed on Google for breaking competition rules, for example, in a series of antitrust cases (Scott 2019). Instead of applying unilateral pressure in the case of disinformation as well, the commission acknowledged the legitimacy problems it faces there and reverted to well-known multistakeholder approaches from the past.

At the member-state level, big states encountered the same problems of legitimacy as the Commission and were often accused of censorship by domestic actors, while smaller states had to contend with serious capacity problems that often made them opt for less ambitious strategies focused primarily on media literacy and educating citizens above all. One of the big EU member states that took the lead in regulating disinformation and faced a huge societal backlash was France. On 20 November 2018, five days after Macron’s IGF speech, the French Parliament passed a law against the manipulation of information. The law’s purpose was to enact stricter rules on the media during electoral campaigns and, more specifically, in the three months preceding any vote (Fiorentino 2018). According to the law, candidates and political parties would be able to appeal to a judge to help stop “false information” and require tech platforms to remove the targeted information within 48 hours (Fiorentino 2018; Rici 2018). Platfonns were obliged by the state to cooperate and promote transparency about how their algorithms function, promote content from mainstream press agencies, remove fake accounts that propagate massive misinfonnation, disclose information about sponsored content, including identity’ of individuals or organisations that promoted it, and promote media literacy initiatives (Rici 2018).

The law provoked a huge backlash in both the French Senate and French society at large. Before Parliament accepted the law, the French Senate rejected it twice, pointing to the difficulty of ascertaining the veracity of information within 48 hours and the potential dangers arising from the removal of lawful information (Boring 2018). Only a week after the law was approved, more than 50 senators from the French centre-right Republican Party' (LR) and the Centrist Union group appealed to the French Constitutional Court over the law, claiming that it fails the principle of proportionality and enters in conflict with the existing penal code (Rici 2018). Furthermore, opposition parties strongly opposed the law on grounds of being “liberticidal”, according to the far-right politician Marine Le Pen, or grossly overlooking systemic problems in the media sphere, according to the far-left politician Jean-Luc Melenchon (ibid).

The United Kingdom encountered similar accusations of censorship with regard to its 2019 consultation paper, “Online Harms White Paper.” It proposed a new regulatory model including a statutory “duty of care,” a contextual obligation “to exercise reasonable care and/or skill to avoid the risk of injury to relevant others” (Woods 2019, 7). According to an analysis by the digital-rights groups Access Now and the European Digital Rights Initiative (Access Now and EDRi 2019), the duty' of care, combined with the prospect of fines for companies, creates the incentives for them to block “legal but harmful” content - that is, content that may cause societal harm but might not be against the law. What is more, to make this possible, companies could opt for content-filtering measures that could result in monitoring of information shared on online platforms, with the boundary between specific and general monitoring being difficult to establish in practice (Woods 2019, 16). Such large-scale monitoring could also illegitimately restrict freedom of expression and lead to online censorship (Woods 2019). As seen in both the examples of France and the UK, disinformation is notoriously difficult to define and getting it wrong easily opens the way to accusations of disproportional actions, censorship, and even abuse of power, thus eroding the legitimacy of any proposed legislation. This is likely not what Macron meant when discussing offering an alternative to both the “Chinese” and the “Californian” model.

Apart from these initiatives of France, the UK, and the EU as a whole, few other countries have undertaken such concerted efforts to convince internet giants to cooperate on disinformation-related issues. Indeed, it remains uncertain to what extent they could successfully implement this type of regulatory framework considering the market power of the US-based corporations, a challenge that Stadnik recognises in her chapter. Most EU member states, in fact, have preferred more proactive and citizen-oriented measures to counter disinformation. Italy set up an online portal where citizens could report misinformation to the police, while Sweden and Spain set up task forces (Funke 2019). Belgium and the Netherlands, on the other hand, initiated media literacy campaigns very much in line with one of the recommendations in the European Action Plan against Disinformation (ibid). Many smaller states lacked the ambition to initiate any proactive measures against disinformation at all.

All in all, if we could speak of the “return of the state” in regulating powerful US companies, it has been the return of the big state. In a move that could be described as an attempt to increase digital sovereignty, EU institutions and some big EU member states have tried to regain control over the flow of information within and across their borders through legislation or control over private intermediaries. But even large, high-capacity states such as France and the UK received a lot of criticism for their efforts and were only partially successful in their attempts to implement their preferred disinformation-regulation frameworks. On the other hand, the EU Commission, also not lacking in capacity', chose to remain cautious in the implementation of its plans and ended up working in close collaboration with other actors in a multistakeholder approach very much in line with the decentred way it had previously followed in the area of internet governance.

The chapter describes in more detail the patterns of preemptive and conflictual cooperation between public and private actors in internet regulation in the next section.

Preemptive and conflictual cooperation

While this chapter has discussed regulation mainly from the perspective of public actors so far, private tech companies’ cooperation in combatting disinformation should not be taken as given and non-problematic. Some analysts have suggested that Facebook’s readiness to cooperate in regulating disinformation and beyond stems more from public relations considerations than from a deep-seated change of attitude (Scott 2018). While their lobbying strategy' until now has been to avoid regulation at all cost, tech firms that have reached monopoly status have realised that their best strategy in the current public climate is preemptive cooperation - participating in the lawmaking process in order to end up with laws that are as weak and flexible as possible.

There are multiple examples of platforms’ strategies of preemptive cooperation in the EU context. To begin with, participants in the High-Level Group tasked with helping to prevent the spread of disinformation have complained that representatives of Facebook and Google undermined the work of the group and opposed proposals that would have forced them to be more transparent about their business models (Schmidt and Nivet 2018). Monique Goyens, the director of the European Consumer Association, suggested that experts were blackmailed to leave aside the important question of whether tech platforms’ business models (based on the use of algorithms to ensure that certain types of content go viral) were crucial in helping disinformation to spread (ibid). The threat was that if discussions about competition policy tools were pushed too far, Facebook could stop its funding for journalistic and academic projects in which some of the High-Level Group experts participated. In other words, Facebook tried to use academic and fact-check funding as a bargaining chip in order to avoid more fundamental questioning of its operations.

Such attempts to move discussions on disinformation away from the topic of platforms’ business models is extremely problematic since these business models have been among the main causes for the rise of disinformation (Access Now and EDRi 2019). The ascent of “attention merchants” (Wu 2016) such as Facebook, Twitter, and Google and their advertising empires has gone hand in hand with the demise of traditional media that have lost advertising revenue and have decreased their investment in investigative journalism, special correspondents, and local news, thus lowering the quality of their content in what has been described as the “de-democratising of news” (Fenton 2012). Not surprisingly, this lowering of journalistic quality has led to a further erosion of public trust in media. What’s more, tech platforms and search engines have weakened the direct relationship between readers and publishers: Over half of the combined sample of the Reuters Digital News Report (55 percent) “prefer to access news through search engines, social media, or news aggregators, interfaces where large tech companies typically deploy algorithms rather than editors to select and rank stories” (Newman 2019, 13). This is particularly problematic considering that the very business model of platforms emphasises the distribution of viral content that drives conversation, regardless of whether that content is accurate or not or hate speech or not (Bogost 2019; Wu 2016). Facebook’s bottom line is not concerned with whether information is true or false, but with the distinction between content that captures users’ attention and content that does not. What social media platforms achieved by being actively involved in the process of defining disinformation in the EU was to devise solutions to the problem that leave as untouched as possible their business models, which are an important reason that the disinformation problem, as it is perceived in the EU, exists in the first place.

Apart from ignoring the elephant in the room, the solutions internet giants offered in terms of content moderation online were quite problematic in themselves - they took place with little oversight or transparency and on the basis of either automated content detection or outsourced fact-checking work (Fisher 2018; Tusikov 2017). Both Facebook and Twitter invested in cost-efficient tech solutions to deal with disinformation. Nevertheless, these efforts revealed the inadequacy of algorithmic approaches to complex societal and media problems. Facebook’s tweak of its algorithm from January 2018 that promoted more personal content at the expense of media content threatened the existence of independent alternative media, highly dependent on the platform for distribution (Rone 2018). In an extreme case, Twitter identified as Russian bots and suspended the accounts of multiple Bulgarian users simply because they were using the Cyrillic alphabet. The fact that more countries than Russia use Cyrillic (not to mention that not all Russian accounts are bots) was overlooked both by the designers of the algorithm and by the algorithm as a blunt tool that silenced multiple users just because of the alphabet they happen to use (Savov 2018).

By engaging in preemptive cooperation, platforms avoided questioning of their business model and got the freedom to experiment with solutions that did not cost them too much. But that also meant that the solutions proposed were far from the best for the public, both in terms of legitimacy and in terms of efficiency. For instance, the blunt algorithmic methods to detect disinformation preferred by platforms were not only a suboptimal way to identify cases of disinformation

The return of the state? 185 online with many false-positives but also led to the removal of content without judicial oversight. Ultimately, the code of practice ceded too much power to big tech platforms, with insufficient public oversight or accountability mechanisms (Farrand and Carrapico 2013; Gillespie 2018; Gorwa 2019; Tusikov 2017).

But platforms engaged not only in preemptive cooperation. Sometimes, they flexed their power and entered in open conflict with regulators, subverting proposed regulations by turning them against the regulators themselves. This is what we call in this chapter conflictual cooperation. For example, in April 2019, Twitter blocked a social media campaign by the French government encouraging people to vote. The reason was that Twitter was required by the new French law to provide information on who had sponsored the ad and with what amount of money, but it had not yet updated its services to do this. Thus, the company preferred not to invest the resources to change its policies at that time and blocked the campaign outright (Tidman 2019). In the wake of the 2019 European elections, it turned out that European parties could not have EU-wide communication campaigns on Facebook due to code of practice rule that advertisers should be registered in the country in which they advertise (Alemanno 2019). These two cases are perfect examples of conflictual cooperation that show clearly that in situations of decentred regulation, conflict between actors with diverging interests is subdued but rarely completely ruled out.

To be sure, frictions arise not only in the relations between tech platforms and institutions but also in the relations between civil society and institutions. While the EU has been more than happy to support fact-checkers, many factcheckers have been wary of co-optation and of being used by EU institutions for political purposes (Funke 2019). Thus, cooperation between nongovernmental organisations (NGOs) and public institutions has also occasionally assumed the character of conflictual cooperation. When it comes to relations between NGOs and tech platforms, cooperation between them has been encouraged by public regulators and has been welcomed by platforms, which are happy to outsource fact-checking whenever possible. Tech platforms have engaged in preemptive cooperation with civil society and academics by funding projects that do not threaten the essence of their business model. For their part, civil society and academics have had frictions with tech platforms mainly with regard to the latter’s famous secrecy regarding crucial aspects of their operations. For example, NGOs and scientists have had serious problems in trying to receive data for research from platforms despite attempts to improve coordination (Gibney 2019).

Both the preemptive and the conflictual cooperation between private and public actors show that rather than simply implementing governments’ agendas and rules, private actors, most notably tech platforms, have engaged in setting the terms of debate and the rules themselves. EU institutions attempted to regain digital sovereignty with regard to online disinformation coming from Russia by counting on US private platforms such as Facebook, Google, and Twitter and nonelected NGOs to regulate this content. Thus, they ended up caught between a rock and a hard place.

186 Julia Rone

Discussion and conclusion

This chapter has shown that despite the rhetoric of French President Macron in his 2018 IGF speech and Mark Zuckerberg’s professed enthusiasm for regulation, in the field of disinformation there has been no shift to strong state legislation and control of private actors by public institutions. To begin with, due to their lack of regulatory' capacity and limited ability to compel corporate compliance, smaller EU member states have engaged relatively little in attempting to regulate internet giants. Big EU member states such as France, on the other hand, have indeed tried to introduce strict laws to combat fake news, but these attempts were met with general criticism and accusations of censorship and lack of due process. Finally, aware of the legitimacy challenges ahead, the European Commission did not emulate the French state-led approach focused on legislation but opted instead for decentred regulation, in which private actors partnered with public institutions, often on their own tenus and with varying degrees of cooperation. Within this practice of decentred regulation, corporations such as Facebook and Google engaged in complex strategies of preemptive and conflictual cooperation, both of which were suboptimal in terms of realising effective regulation of disinformation in the public interest.

There are two important questions that follow from these developments in the regulation of online disinformation in the EU. The first, narrower question is how can we achieve better regulation of online disinformation in the EU? Second, and related to this, is the broader question of what insights on global internet regulation we can get from the particular case of regulation of disinformation in the EU. Both of these questions touch upon the issues of power and legitimacy that we discussed in this chapter.

Starting with the first question, it is clear that current EU policies have given too much weight to US tech giants to define both what the problems with disinformation are and how to propose solutions, while other actors such as media regulators have remained largely neglected. Media regulation expert Iva Nenadic has emphasised that in order to regulate disinformation more effectively, we need more oversight of tech platforms and a better understanding of their practices of content moderation, both those undertaken by algorithms and those outsourced to workers in low-labour-cost countries.1 In addition, Nenadic has emphasised the need to give more roles to media authorities that already exist in EU member states and enhance their capacities and cooperation with each other across countries, since disinformation is not a single-country phenomenon but crosses borders easily. To be sure, small EU member states cannot miraculously increase their power vis-à-vis internet giants, but a better understanding of how these companies operate combined with better coordination among EU member states would allow states to address the problem much more comprehensively and adequately. While one small state cannot make Facebook change its policy, a commonly negotiated strategy' backed by all EU member states has much greater chances to succeed and thus change Facebook’s policies also in smaller states.

Another important step for achieving more effective regulation of disinformation is related to expanding the scope of current measures. Most public attention so far, and this chapter is not an exception, has focused on political disinformation, especially in the run-up to elections. But disinformation is a much more complex phenomenon that goes beyond elections. Jules Darmanin, the coordinator of the FactCheckEU initiative, has emphasised the need to focus on more types of disinformation, especially content related to climate change denial or public health, such as anti-vax conspiracies.2 The boom of disinformation in relation to the Covid-19 pandemic is another case in point. What’s more, more research and investigative reporting is needed on the funding schemes of “alternative” media online.

Third, regulating disinformation should focus not only on the symptoms but also on the root causes for the current media malaise. Trying to regulate disinformation without questioning the business models of tech giants and their monopoly power is doomed to fail. One might go even further than the media sphere and argue that the spread of news classified by the EU as disinformation cannot be understood without paying attention to the radical right movement that has risen to prominence in the aftermath of the 2008 Economic Crisis (Berntzen and Weis-skircher 2016; Gattinara and Pino 2019; Rone 2019). Removing content and teaching media literacy can hardly change the political opinions of an already highly politicised segment of the population.

Fourth, the cunent configuration of decentred regulation as observed in the actions of the EU Commission reveals state/non- state dynamics in terms of preemptive and conflictual cooperation strategies. The EU’s anti-disinformation campaign in this context might curb the spread of disinformation but at too high a cost. The ever-present danger of state censorship is currently made even stronger by giving censorship power also to big tech platforms with dubious methodology' for identifying problematic content and no democratic mandate. This is problematic in itself but it is also troubling because the attempts of the EU and its member states to regulate disinformation have been instrumentally used as a justification for harsh laws against “fake news” in authoritarian countries such as Russia and Singapore (Funke 2019). The EU has traditionally prided itself with being a soft power that exports high democratic standards across the world. In the case of regulating disinformation, unfortunately the EU example has been far from “best practice”.

One possible solution to these issues involves confronting the thorny question of what counts as disinformation in the first place. Disinformation, in a sense, is in the eye of the beholder, which means that any state definition will require some degree of democratic legitimisation. If the EU and its member states want to get out of the current power and legitimacy impasses in addressing disinformation, and avoid both the Californian and the Chinese models, they could involve the public, the European citizens themselves, in defining the problem and suggesting how to solve it in ways that go beyond current Band-Aid approaches. Some steps have been already made in this direction, but they can be taken much further. The UK’s practice of Parliamentary hearings on disinformation, for example, can be expanded with a more active use of citizen dialogues and citizen consultations, both instruments already used at the European level but often with little effect on policy consequences. Radical proposals might include breaking up tech giants or investing more in ethical innovation in order to design platforms nor based on exploiting users’ attention in order to extract their data. Radical proposals might also have nothing to do with tech platforms but focus on supporting local journalism or more constructive journalism instead (Constructive Journalism Network 2019).

No one knows what proposals might come up and get approval since there have been few inclusive public debates on the issue yet, whether in individual EU member states, or in the EU as a whole. The UK’s white paper on online harms has been a welcome exception since it was open to broad public consultation. Public participation could be strengthened through involvement in surveys and focus groups, as well as more innovative fonns of citizen participation and deliberation, including public consultations, citizen assemblies, and publicly organised debates, publicised on national mainstream media. More hearings and debates on the issue in the European Parliament but also in national parliaments in each EU country are to be encouraged, as well as more inter-parliamentary cooperation to ensure that there is if not a common then at least a coordinated approach to disinformation in the EU.

In fact, it is precisely this procedural point that goes beyond the narrow question of regulating online disinformation and offers a potential new approach to the field of internet regulation in general. Legitimacy is a central issue to be considered in any attempt to put into practice Macron’s call to regulate the internet in a way that goes beyond both the Chinese and the Californian models. If democratic states want to assert their democratic digital sovereignty, a good way to legitimise these attempts would be to encourage much more parliament and citizen participation in discussions on what we want to regulate, how, and why. Legitimacy in democratic states, as discussed in this chapter, is based on democratic participation, popular acceptance of a policy, and efficiency. It is true that proposed solutions to the disinformation problem can be democratically negotiated and still inefficient. Yet, a democratically negotiated regulation can also be much more efficient as citizens will also have ownership of proposed solutions and will not feel arbitrarily censored. Current approaches to disinformation, on the contrary, are neither legitimate nor particularly efficient. We can no longer ignore the striking absence of the “people” when discussing internet regulation, especially considering the increasing demand for popular sovereignty in fields as diverse as trade policy or fiscal policy (Brack, Coman and Crespy 2019). Following this trend, popular and parliamentary sovereignty over digital infrastructure, data, and content could offer the basis for a truly progressive model of digital sovereignty that escapes the pitfalls of the archetypical “Chinese internet” but also the complex and often private interest-driven reality of the “Californian model” of decentred regulation.

At the time of writing the conclusion to this chapter, the coronavirus epidemic is at its peak. EU member states such as Hungary introduced straightforward authoritarian measures to deal with the pandemic including rule by decree, suspension of Parliament and, especially relevant for the chapter, jail terms for up to

The return of the state? 189 five years for “intentionally spreading misinformation that hinders the govern' meat response to the pandemic” (Walker and Rankin 2020). It remains to be seen how long-lasting the changes brought about by the epidemic will be. One thing is certain: Considering that both states and internet giants have become more powerful in this situation of emergency, citizen participation and the safeguarding of the democratic process become even more important in order to safeguard both civil liberties and the quality of public debate.

Notes

  • 1 Interview with Iva Nenadic for the current chapter, June 2019.
  • 2 Interview with Jules Darmanin for the current chapter, June 2019.

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