Pre-edition2.3_GIZ Law Journal

NOV. 2022

PRE-EDITION

FEATURE

FREEDOM OF SPEECH AND THE RIGHT TO INFORMATION: TENSIONED PILLARS OF THE RULE OF LAW

Today, the world continues to face the complex challenges brought by the pandemic; however, this subject despite being the one that has taken the first places in the concern of the States to resolve, it did not imply the disappearance of other situations whose relevance requires that they be made visible and addressed in a responsible manner. In this sense, it is possible to mention two essential conditions of a rule of law that have been kept in tension, which are freedom of speech and the right to information; these, in conjunction with other fundamental rights, constitute the basis on which the person can fully develop in the context that surrounds them. Regarding the above, a decisive element that is determining new paradigms and challenges in terms of freedom of speech and the right to information, is the now called “digital era”; this identification of a historical period, attends to the unavoidable presence -convenient or not- of advances in digital and technological media, which directly impact the way in which people develop and coexist today. A clear manifestation of the impact of the digital era in the way people express themselves and interact with information, is reflected through social media. In the latter, people have found channels both to express their thoughts, opinions, ideals and proposals or disagreements, as well as to obtain information on a variety of topics or issues of greater or lesser interest. This has raised several questions regarding the contrast between the freedom of speech and the right to information with the dissemination of fake news and/or hate speech. Should there be limits to freedom of speech in social media? How should the dissemination of false information through social media be prevented and/or addressed without incurring in prior censorship? Which are the subjects thar prevail over freedom of speech? We invite you to share your ideas.

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Pre-EDITION

FREEDOM OF THE PRESS AND THE RIGHT OF FREE EXPRESSION – RIGHTS WITHOUT LIMITS?

Disinformation campaigns can be defined as selecti- ve and organized attacks towards a specific target like companies, institutions, states or individuals whereat de - monstrably false or misleading information is provided for the main purpose of manipulation. 3 They are aiming at – speaking of the least successful case scenario – cau - sing disturbances and scattering doubt. Regularly imple - mented in the widths of the World Wide Web, their trappy potential unfolds and it’s like the first domino stone to fall. Reaching from bot-networks to private agencies in charge of the distribution, disinformation comes along in different shapes and that’s what makes it hard to allot the order to the initiator or to even see through the mechanism. The psychological momentum and the possible impact of disinformation campaigns is immense, which causes them to be so dangerous. But other than that, there lies another danger of collateral nature: Besides well-organi- zed and often technically infused campaigns where bots do the dirty work, mainstream and social media as well as their consumers and users do (inevitably) engage in spreading the word and tone set by those as a result of them, consciously or unconsciously. Facing the fact, that especially for young people social media serves as the main source of information, this is to be considered a precarious trend. Depending on the context in which such disinformation is placed, they do have the potential to cause severe harm and influence the course of events dramatically as their contents are picked up by journalists and the media in general, too. First attempts in facing the misuse in terms of tech- nology and law How do we cope with that? Is there any type of regula- tion? Or is the responsibility left all-over to the protago- nists of the (social) media world?

Disinformation campaigns: a modern phenomenon Unfortunately, the potential of misusing the tool of news coverage in any form comes along with its benefits and contributions. We have witnessed the phenomenon of disinformation campaigns already several times on infamous occasions. To name a few, the American presidential campaign of 2016 in which the systematic use of misinformation has displayed in front of the eyes of the world. Also in Latin America f. e. during the presidential elections in Brazil or El Salvador where disinformation campaigns and scien- ce denialism belonged to the standard repertoire when it came to attracting voters and securing power 1 . A pri - vate agency operating mainly in London run a campaign by offering money to influencers for spreading wrong in- formation about the Biontech/Pfizer vaccine against Co- vid-19. 2 Or to illustrate a more actual example: The Ukrainian war is as well a battle of the media in which the internet once again is flooded with information of di- fferent sources, each claiming to tell the truth. Frequently, this is broken down into mainstream vs. alternative media and both are regularly confronted with the allegation that the other is painting a wrong picture of the reality to su - pport the political and economic interests of the nations and authorities they want to support thereby. This article does not seek to assess which media should be trusted or consulted, but more to gain awareness on the issue and to stimulate thoughts on where adjustments concer - ning the regulation of the press and social media platfor - ms have to be made and are of service to the ultimate fruitfulness of the exertion of the right of free expression. Because the forementioned campaigns and the syste - matic distribution of misinformation no matter their origin indeed do affect the press and their publications equally.

By: Julia Bayer

Intern Project DIRAJus 02/2022- 04/2022

Talking about the media and its role, ever since it usually takes place in the context of unlimiting the press and defending the right to express oneself freely and in an uncen - sored manner. This applies especially in political unstable regions, where people face systematic discrimination on whatsoever basis or where corruption is the staff of life. Serving as some sort of an additional power that is outsourced of the traditional system of executive, administrative and judicial power it contributes vitally to the establishment and advancement of democracy. The right of freedom of expression and the freedom of the press function as a fundamental element in a system of checks and balances in a wider sense. Undoubtedly, these rights need to be promoted and protected to guarantee transparency on all levels. Nevertheless, other challenges arise out of its utilization as it offers a sail area to those taking advantage of it in an uncandid manner. The question is: What if we looked at this topic from a different angle? If we were to absent ourselves from the one-sided perspective we naturally have towards this sub- ject? Are there adjustments that need to be taken into consideration and deserve to be fostered?

1 https://www.boell.de/sites/default/files/2020-11/201124D_Boell_Perspectivas_Innenteil_Web_FINAL.pdf 2 https://netzpolitik.org/2021/spur-nach-russland-was-hinter-der-influencerkampagne-gegen-biontech-steckt/ 3 https://prevency.com/de/was-ist-eine-desinformationskampagne/

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First of all, there is a ton of promising studies und projects set up by various universities or associations that aim to gather information and understand the phenomenon and to make the topic itself more manageable. In doing so, different ways of handling the issues are continuously de - veloped. For example, the US government instructed the Defense Advanced Research Projects Agency (DARPA) with the development of a software that enables the iden - tification of disinformation. 4 Leaving the technical and analytical approach aside, a light needs to be shed on the hard facts. When it comes to regulation, a line has to be drawn once again between contents created by (alleged) private persons and such sources following journalistic purposes. Regarding journalistic work in Germany for example a so called media state contract (“Medienstaatsvertrag”) entered into force in November 2020. This agreement includes the obligation that online media with a journa - listic purpose has to keep up with recognized journalistic standards. According to that, the published contents have to be reviewed previous to their publication with the ne - cessary carefulness in terms of origin, verity and matter of the information provided. Potential consequences in not doing so can be the prohibition or suspension of the publication. Alternatively, the online media is free to join the German Press Council which stipulates a system of self-control in which all of their members acknowledge the general validity of a so called press codex whose re - gulations shall form the base of journalistic activity. 5 Ad - mittedly, the latter sounds vague and more like an effort to implement a moral instance.

On an European level the European Union introduced a so called plan of action back in 2018 leading to the esta - blishment of a task force and other services to face hybrid dangers like disinformation. It sought to strengthen digi - tal infrastructures in terms of data analysis and strategic communication aspects among the member states. 6 To grant a legally binding character in all member states, the European Union passed the so called Digital Services Act that targets to take action against disinformation and hate speech on the internet and imposes several obligations on the operators of social media platforms and online companies. 7 Apart from that, one can recognize a lack of area-wide, legally binding regulation both on a national and especia - lly on an international level. In fact, some countries f. e. in South Eastern Asian or African regions do show a will and passed various laws to eliminate disinformation. Howe- ver, as the rule of law is regularly cut short in many of tho - se political systems the fear of an abuse at the expense of the freedom of press and the right of free expression is tremendous. 8 Talking about responsibility prior to that, how much are we really allowed to expect - especially if we can’t even distinguish between the fact whether a tweet stems from a real person or a bot. Do we need to be protected better or are the measures taken already sufficient? Do we have to play our part or is it left to us after all? Perspective:

Ideally, the efforts already initiated will be further elabora - ted. The truth is, that introducing anti-disinformation-cam- paigns is only the first step, but moreover an all-over re- gulation that is both dynamic and just is required. It has to keep up with the necessity of being flexible to modern day challenges. Further, it has to be kept in mind, that different countries face different challenges in this realm. Especially in regions, where the trust in official entities, institutions and media obviously attached to them, is dee - ply afflicted. This is why the press has to participate ac- tively and acknowledge their potential of impact with the need to take over a leading role when it comes to a filter function. Further possible regulation needs to be purposeful and well-targeted. The different regional dynamics make it even harder to implement rules on an supranational le - vel. But ultimately, they will be necessary when it comes to countries where people responsible for the distribution of misinformation and in charge of the mechanisms rela - ted to this form the head of the state. These are the ones that need the help of the international community and the commitment to journalistic standards the most, as they are affected most heavily, too. Clearly, we have the right to demand and expect from media with journalistic purposes that they do their work diligently and professionally. Still, when it comes to con- sumption, everybody is held accountable individually to double-check the information provided by the media or on social media platforms.

The goal must be – to sensitize the consumer - that the wide mass is provided with objectively correct information or at least have access to the fact of whether the content provided is verified or not. Moreover for those, who are ready to view and question a topic and its background, it is important that their original intention of being a critical viewer or reader is not reversed as the fact that one is ready to consume different types and forms of media and is open to them can not be to their detriment. Last but not least, a very critical attitude is recommended in general regarding contents created by influencers or other private persons. We are not immune to mass pro- paganda and it is part of the human nature to jump to con - clusions quickly. We really need to promote the differen- tiated portraiture of events and moods without drawing a wrong or suggestive picture of reality. This is a challenge and a balancing act on its own that needs to be mastered by all of us together.

4 https://www.kom.de/medien/usa-entwickeln-software-gegen-fake-news/ 5 https://www.presserat.de/selbstverpflichtung-onlinemedien.html

6 https://www.bundesregierung.de/breg-de/themen/umgang-mit-desinformation/eu-desinformation-1875918 7 https://www.europarl.europa.eu/news/en/press-room/20220114IPR21017/digital-services-act-regulating-platfor- ms-for-a-safer-online-space-for-users 8 https://www.derstandard.de/story/2000084146773/staaten-bekaempfen-fake-news-zunehmend-per-gesetz; https://www.dw.com/de/afrikas-gesetze-gegen-internet-hass-hass-bekämpfen-freiheit-einschränken/a-52436598

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