By: Jon Henley

In a world where false and misleading information reaches billions instantly and online manipulation is becoming ever more sophisticated, governments are increasingly turning to legislation to combat fake news.

But unlike, say, hate speech, terrorism advocacy or child pornography, fake news is a tricky area for the law: it has not, generally, been illegal – and in democracies, political speech is seen as deserving the strongest of free speech protections.

Lawyers, technology experts, media representatives and free speech campaigners have expressed fears that hastily drawn-up domestic measures outlawing fake news may at best prove ineffective, and at worst counterproductive.

“All too often, legislation focuses on the trees, not the forest,” said Alberto Alemanno, a professor of EU law. “It’s quite likely to end up being irrelevant, or even to exacerbate the root causes of the fake news phenomenon.”

Infinitely easier and cheaper to produce and spread than ever before, fake news is also “low-hanging fruit” for politicians, Alemanno said: “They can talk to voters about it, whereas tackling the underlying, structural reasons why it’s so pervasive in our society and media environment is far, far harder.”

From Europe to Asia, leaders are rushing to adopt anti-fake news laws. France – where “fake news”, necessarily narrowly defined so as to protect free speech, has been illegal since 1881 – aims to allow judges to order the deletion of false online content in election periods.

The legislation will also oblige social media platforms to name advertisers who are financing content, and say how much they are paying, and permit France’s independent broadcasting authority to suspend media seen as trying to destabilise a vote, notably if “influenced by foreigners”.

Germany earlier this year also introduced an online hate speech law, giving platforms with more than 2 million users 24 hours to remove “obviously illegal” terror content, racist material and fake news or face fines of up to €50m (£44m). Other offensive material must be blocked with seven days.

Other EU countries including Sweden, Ireland and the Czech republic are weighing or implementing anti-fake news legislations. But as campaigners warn such laws could curb free speech or lead to inadvertent censorship, regimes often highly sensitive to media criticism stand accused of using similar legislation to try to silence free expression and opposition groups.

Criticised for mounting a “full-frontal assault on mainstream journalism”, India last month abruptly withdrew, 24 hours after it was unveiled, a sweeping new order allowing the suspension of any journalist so much as suspected of spreading fake news (which it did not define).

But Malaysia has passed a law setting fines of up to £88,000 and jail terms of up to six years for offenders who use traditional news outlets, digital publications and social media – including outside Malaysia – to spread fake news. Opponents have said the law takes the country “one step close to a dictatorship”.

Thailand, too, has a cybersecurity law making the spread of false information liable to a jail term of up to seven years, while Singapore is preparing a report on measures to counter “deliberate online falsehoods” and the Philippines is mulling anti-fake news legislation that would punish offenders with up to 20 years in jail.

Besides legislation, civil society measures being increasingly adopted to counter fake news, including fact-checking and debunking, also may not ultimately prove effective, Alemanno said. “The problem here is simply that fact-checkers don’t step in until after publication, by which time it’s too late.”

Lisa-Maria Neudert of the Oxford Internet Institute, who specialises in countermeasures to computational propaganda, agreed: “Will a fact-checked story simply increase the visibility of the original? Will it be seen by the same people? Will it be believed? There’s a credibility problem. People don’t necessarily believe mainstream media and political elites.”

With partners, the media freedom watchdog Reporters sans Frontières has launched the Journalism Trust Initiative, a possible future certification system that would promote rigorous and reliable journalism through standards covering transparency and trust issues such as ownership, independence, revenue sources, journalistic methods and compliance with ethical norms.

“Two once-distinct arenas – the media, and public debate – have merged and changed,” said RSF’s director, Christophe Deloire. “False and reliable information now circulates in the same channels, and ‘bad’ news circulates faster than ‘good’. We have to give a real advantage to those who produce reliable journalism.”

Deloire said he was not opposed to “a good balance between self-regulation and regulation”. But as the EU prepares to unveil a plan for voluntary self-regulationby internet giants such as Facebook, Twitter and Google, with the threat of laws to follow if they fail to comply, experts doubt that simply demanding the platforms take responsibility is a long-term solution.

“There are questions around the time and resources social networks will put in to do that job, and also whether they are necessarily the best judges of the material,” said Neudert. “In France, decisions will be made by judges on a on a case-by-case basis, so there will at least be juridical oversight.

But there are obviously gaps, and it’s very hard to see how it will work ... Extending existing laws and definitions into the online sphere can be difficult. And now authoritarian regimes can point to democracies taking these steps.”

Alemanno said a big part of the problem was the social media platforms’ business model. “The push has to come from the platforms, but the way they make their money – increasing reader engagement, and monetising their data – means they have no incentive to play the role of arbiters of truth,” he said.

“That may change, eventually. But rather than top-down, prescriptive laws, we should be thinking about changing the environment in which readers act, and empowering them: displaying related, fact-checked articles next to disputed stories; apps allowing users to check for veracity; certification systems.”

For Naudert, the platforms are slowly “shifting their thinking”, realising that a pay-per-click model may not be the best guarantee of their long-term success. “What’s needed most,” she said, “is more transparency, all round. This is a societal, media and technological problem. Pointing the finger at just one actor won’t help.”