Combating Fake News with â•œReasonable Standardsâ•š

Hastings Communications and Entertainment Law Journal Hastings Communications and Entertainment Law Journal

Volume 43

Number 1

Winter 2021

Article 4

Winter 2021

Combating Fake News with “Reasonable Standards” Combating Fake News with “Reasonable Standards”

Tawanna D. Lee

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Combating Fake News with “Reasonable Standards”

, 43 HASTINGS COMM. & ENT. L.J. 81

(2021).

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2021 COMBATING FAKE NEWS

Combating Fake News with

“Reasonable Standards”

By TAWANNA D. LEE, M.ED, J.D.

Abstract

Fake news is an intractable concern around the globe, sowing division

and distrust in institutions, and undermining election integrity. This Article

analyzes the spectrum of private and public regulation of “fake news” from

comparative law and normative perspectives. In the United States,

combating fake news shares surprising bipartisan support in an ever-divided

political landscape. While several proposals have emerged that would strip

Internet media companies of the liability shield for third-party content, it is

unlikely that they would survive the seemingly insurmountable First

Amendment scrutiny. This Article argues for a different tact—an amendment

to the Communications Decency Act that addresses platform design choices

rather than speech. In doing so, the Article addresses constitutional

concerns of online expression and censorship and demonstrates that a

“reasonable standard” is consistent with the existing Internet regulatory

framework.

Introduction

In October 2019, Twitter, in addition to other tech platforms and media

outlets like YouTube, Facebook, MSNBC, and Fox, ran a 30-second

campaign ad that falsely accused Democratic presidential candidate Joe

Biden of blackmailing Ukrainian officials to stop an investigation of his son.

The viral video was viewed more than 1.5 million times after President

Trump posted it to his Twitter account.

With top performing fake stories

like this one reaching users, on average six times faster than content from

J.D., The George Washington University Law School, May 2020. Editor-in-Chief,

Vol. 72, Federal Communications Law Journal, Internet Law & Policy Foundry Fellow.

. Emily Stewart, Facebook is refusing to take down a Trump ad making false claims about

Joe Biden, VOX (OCT. 9, 2019, 2:30 PM EDT), https://www.vox.com/policy-and-politics/

2019/10/9/20906612/trump-campaign-ad-joe-biden-ukraine-facebook.

. Eugene Kiely & Robert Farley, Fact: Trump TV Ad Misleads on Biden and Ukraine,

FACTCHECK.ORG (Oct. 9, 2019), https://www.factcheck.org/2019/10/fact-trump-tv-ad-misleads-

on-biden-and-ukraine/.

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HASTINGS COMM/ENT L.J. 43:1

reputable news outlets,

Internet media companies are powerful vectors for

the distribution and amplification of fake news.

“Fake news” articles have existed for centuries. However, the Internet

has enabled them to spread at a rapid pace, with users consuming,

processing, and sharing them before anyone has considered their veracity.

This phenomenon is particularly pernicious with respect to political

information. A 2017 Yale Law School Information Society Project

identified that the primary tangible harm that results from fake news is that

it “devalues and delegitimizes voices of expertise, authoritative institutions,

and the concept of objective data—all of which undermines society’s ability

to engage in rational discourse based upon shared facts.”

Consider one

estimate that suggests that “86% of the groups running paid ads on Facebook

in the last six weeks before the 2016 election were suspicious groups,

astroturf movement groups,

and questionable news outlets.”

To understand the scale of the problem, consider that a 2019 World

Economic Forum Global Risks report continued to call attention to “fake

. See WORLD ECON. FORUM, GLOBAL RISKS 2019: 14TH EDITION (2019), http://www3.

weforum.org/docs/WEF_Global_Risks_Report_2019.pdf.

. Merriam-Webster defines misinformation as “incorrect or misleading information,”

whereas disinformation is distinguished as false information deliberately and often covertly spread

(as by the planting of rumors) in order to influence public opinion or obscure the truth.” Compare

misinformation, MERRIAM-WEBSTER DICTIONARY ONLINE, http://www.merriam-webster.com/

dictionary/misinformation (last visited Apr. 29, 2020), with disinformation, MERRIAM-WEBSTER

DICTIONARY ONLINE, http://www.merriam-webster.com/dictionary/disinformation (last visited

Apr. 29, 2020). Colloquially, misinformation is understood as merely misleading whereas

disinformation is understood as an outright falsehood. As a result, the Article, as do the sources

cited, uses the terms interchangeably. Where possible, the article refers simply to “fake news.”

It is important to note that “fake news” falls on a spectrum, measured by intent to deceive. The

spectrum ranges from satire or parody misleading content on one end of the spectrum, to imposter

and fabricated content in the mid-range, followed by false connection, where the imagery, captions,

or headlines do not support the content, and false context and manipulated content. See Claire

Wardle, Fake News. It’s Complicated, FIRST DRAFT NEWS (Feb. 16, 2017), https://medium.com/

1st- draft/fake-news-its-complicated-d0f773766c79.

. THE INFO. SOC’Y PROJECT & THE FLOYD ABRAMS INST. FOR FREEDOM OF EXPRESSION,

FIGHTING FAKE NEWS WORKSHOP REPORT, (Mar. 7, 2017), available at https://law.yale.edu/

sites/default/files/area/center/isp/documents/fighting_fake_news_-_workshop_report.pdf.

. Merriam-Webster defines astroturfing as “organized activity that is intended to create a

false impression of a widespread, spontaneously arising, grassroots movement in support of or in

opposition to something (such as a political policy) but that is in reality initiated and controlled by

a concealed group or organization (such as a corporation).” Astroturfing, MERRIAM-WEBSTER

DICTIONARY ONLINE, http://www.merriam-webster.com/dictionary/astroturfing (last visited Apr.

29, 2020).

. Abby K. Wood & Ann M. Ravel, Fool Me Once: Regulating Fake News and Other

Online Advertising, 91 S. CAL. L. REV. 1223, 1230 (2018), https://southerncalifornialawreview.

com/wp-content/uploads/2018/10/91_6_1223.pdf. Existing campaign finance laws target paid

advertising, which does not reflect the totality of fake news in the Internet media ecosystem.

However, as the authors note, there is spending that occurs in various stages of a disinformation

campaign, including salary and production that may trigger existing rules.

2021 COMBATING FAKE NEWS

news” as a leading global risk.

This risk assessment reflects a deeper

concern that the prevalence of “fake news” has increased political

polarization, decreased trust in public institutions, and undermined

democracy.

These phenomena complicate the means by which our political

system operates and the manner in which people hold political leaders

accountable. In an Internet media ecosystem, which exposed Americans to

more “fake news” than accurate political information during the 2016 U.S.

election cycle,

the economics of generating clicks and views of sensational

or novel headlines over those that are newsworthy underscores the threat to

democracy in failing to moderate fake news.

In fact, Internet media companies’ rational self interest lies in exploiting

this phenomenon, increasing advertising revenue by promoting content that

drives users to like, click, and share.

For instance, during the 2016 election,

fake news websites created by profit driven Macedonian teenagers indicated

that the linchpin of their business model was to drive content to social media

platforms.

While likely not the sole motive for trafficking in “fake news,”

the profit margin should not be understated. As a case in point, a New York

Times exclusive story about Donald Trump’s purported $916 million loss on

his 1995 income tax returns generated a paltry 175,000 Facebook

interactions over a month compared to a “fake news” headline from

ConservativeState.com, which garnered 480,000 interactions in just one

week.

But how does the government address the issue of fake news in a

manner that does not circumscribe protected speech?

This Article seeks to analyze the spectrum of private and public

regulation of disinformation in online political speech, hereinafter referred

to as “fake news,” from comparative law and normative perspectives. This

Article then proposes an amendment to Section 230 of the Communications

. Id.

. See Darrell M. West, How to Combat Fake News and Disinformation, BROOKINGS (Dec.

18, 2017), https://www.brookings.edu/research/how-to-combat-fake-news-and-disinformation/.

. See e.g., Philip Howard & Bence Kolanyi, Social Media Companies Must Respond to the

Sinister Reality Behind Fake News, THE GUARDIAN (Sept. 30, 2017, 7:03 PM), https://www.

theguardian.com/media/2017/sep/30/social-media-companies-fake-news-us-election (discussing

the unequal distribution of fake news across the country during the 2016 election).

. See generally Alice Marwick & Rebecca Lewis, Media Manipulation And

Disinformation Online, DATA & SOC’Y, https://datasociety.net/wp-content/uploads/2017/05/Data

AndSociety_MediaManipulationAndDisinformationOnline-1.pdf.

. Danielle Keats Citron, Cyber Mobs, Disinformation, and Death Videos: The Internet As

It Is (And As It Should Be) MICH. L. REV. 1073, (2020), https://repository.law.umich.edu/

cgi/viewcontent.cgi?article=5820&context=mlr.

. Craig Silverman & Lawrence Alexander, How Teens In the Balkans Are Duping Trump

Supporters With Fake News, BUZZFEED NEWS (Nov. 3, 2016, 7:02 PM EST), https://www.

buzzfeed.com/craigsilverman/how-macedonia-became-a-global-hub-for-pro-trump-misinfo?utm_

term=.eaD8L1pQO#.se1x-j35mJ.

. Id.

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HASTINGS COMM/ENT L.J. 43:1

Decency Act requiring platforms to adopt “reasonable standards” in order to

retain their shield of immunity.

In addressing this issue, Part I will consider the impact of the spread of

fake news on the Internet versus fake news consumption of political

information via traditional media. Moreover, Part I will review the self-

regulatory scheme and its role in the dissemination and amplification of fake

news in online political speech. As Part I will illustrate, the tension between

industry self-interest and the public interest have necessitated a

reexamination of the existing legal framework.

Part II will then provide a comparative overview of the public

regulation of online political speech in the European Union and address

concerns of censorship and limiting freedom of expression. While many of

the legal strategies deployed in the E.U. would be incompatible with the First

Amendment, this section will argue that the Internet media companies’

response to these initiatives demonstrate (1) a technological capacity to

address “fake speech” in more direct ways than currently exist for the U.S.

versions of their platforms; (2) an ability to engage third-party organizations

in making determinations about what constitutes “fake news;” and (3) the

need for regulation to modify platform behavior to align it in the public

interest.

Part III will discuss recent attempts to address the regulation of fake

news in online political speech. In particular, this part will consider proposed

federal legislation, subsequently enacted state legislation, and resulting the

judicial determinations about the constitutionality of attempts to regulate

political speech.

Finally, Part IV offers a recommendation to apply a legislative

framework tailored for the Internet ecosystem that would provide guard rails

against political “fake news” while respecting constitutional limitations on

regulating speech. Specifically, the Article proposes an amendment to

Section 230 of the Communications Decency Act, by carving out

“reasonable standards” safe harbors under which Internet media companies

may maintain the statutory immunity they enjoy for content posted by third

parties.

Current State of Online Political Speech in the U.S.

Self-Interest and Self-Regulation Come to a

Head in the Face of “Fake News”

What is fake news? NPR political reporter, Danielle Kurtzleben, notes

that while contemporary political figures have co-opted the term “fake news”

to devalue unfavorable news, fake news has traditionally referred to “lies

2021 COMBATING FAKE NEWS

posing as news.”

Fake news, in the traditional sense, is “a media product

fabricated and disguised to look like credible news that is posted online and

circulated via social media.”

Either of these “strategic uses of “fake

news”—to achieve specific political results and to destabilize the press as an

institution—are self-evidently very dangerous for democracy.”

Traditional media arguably “expose[s] people to a range of topics and

views at the same time that they provide shared experiences for a

heterogeneous public.”

Conversely, Internet media companies provide

platforms that leverage technology to “infiltrate a population of unaware

humans and manipulate them to affect their perception of reality, with

unpredictable results.”

“[F]actual knowledge about politics is a critical

component of citizenship, one that is essential if citizens are to discern their

real interests. . . . In the absence of adequate information neither passion nor

reason is likely to lead to decisions that reflect the real interests of the

public.”

The erosion of public trust in traditional news sources creates a

vacuum filled by misinformation. Regulating “fake news” in online political

speech in the context of an election is critical to protecting the rationality of

electoral outcomes.

As researchers Alice Marwick and Rebecca Lewis note, the spread of

misinformation leads to decreased trust in media, the impact of which

“weakens the political knowledge of citizens, inhibits its watchdog function,

and may impede the full exercise of democracy.”

This phenomenon is

exacerbated by social and political divisions that undermine the traditional

ways in which truth ordinarily prevails. “Investigations, exposés, and studies

fall short in a situation where a significant portion of the population distrusts

a wide array of sources they perceive as politically or ideologically hostile

. See Danielle Kurtzleben, With ‘Fake News,’ Trump Moves from Alternative Facts to

Alternative Language, NAT’L PUB. RADIO (Feb. 17, 2017) (discussing the partisan polarization in

political discourse with the emergence of two separate views of fake news, first used to describe

the intentional dissemination of fictional news, and later morphing, ironically, into disinformation,

being adopted to discredit accurate but unfavorable news), http://www.npr.org/2017/02/17

/515630467/with-fake-news-trump-moves-from-altemative-facts-to-alternative-language.

. Nina I. Brown & Jonathan Peters, Say This, Not That: Government Regulation and

Control of Social Media, 68 SYRACUSE L. REV. 521, 521-22 (2018), https://heinonline.org/

HOL/P?h=hein.journals/syrlr68&i=557. Notably, this definition excludes unintentional reporting

mistakes, conspiracy theories, satire that is unlikely to be misconstrued as factual, false statements

by politicians, and reports that are slanted but not outright false.

. Lili Levi, Real Fake News and Fake Fake News, 16 FIRST AMEND. L. REV. 232, 234-35

(2018), https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1580&context=fac_articles.

. CASS R. SUNSTEIN, #REPUBLIC: DIVIDED DEMOCRACY IN THE AGE OF SOCIAL MEDIA

43 (2018).

. West, supra note 9.

. MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT

POLITICS AND WHY IT MATTERS 3, 5 (1996).

. Marwick, supra note 11 at 45.

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HASTINGS COMM/ENT L.J. 43:1

— including sources that traditionally commanded broad if not universal

respect.”

Constitutional Protection

The First Amendment and the Communications Decency Act stand as

bulwarks to regulating online political speech. The First Amendment

provides that “Congress shall make no law. . . abridging the freedom of

speech; or the press.”

Moreover, “the First Amendment has its fullest and

most urgent application to speech uttered during a campaign for political

office.”

The online dissemination of political opinions and information are

incontrovertibly political speech and is therefore protected by the First

Amendment. Under the strong protections afforded to political speech,

several legislative attempts to regulate in this space have been defeated.

For example, in Washington Post v. McManus, 944 F.3d 503 (4th Cir. 2019),

the court found

The lodestar for the First Amendment is the preservation of the

marketplace of ideas. When the government seeks to favor or

disfavor [political speech] . . . it compromises the integrity of our

national discourse and risks bringing about a form of soft

censorship. For this reason, content-based laws are “presumptively

unconstitutional,” the presumption being necessary to ensure that

the marketplace of ideas does not deteriorate into a forum for the

subjects of state-favored speech. . . . Because our democracy relies

on free debate as the vehicle of dispute and the engine of electoral

change, political speech occupies a distinctive place in First

Amendment law.

Regulation of political speech “trenches upon an area in which the

importance of First Amendment protections is at its zenith.”

Buttressing

such strong protections of political speech—and hampering regulation on

. Suzanne Nossel, The Pro-Free Speech Way to Fight Fake News, FOREIGN POL’Y (Oct.

12, 2017, 9:15 AM), https://foreignpolicy.com/2017/10/12/the-pro-free-speech-way-to-fight-fake-

news/.

. U.S. CONST. amend. I.

. Wash. Post v. McManus, 944 F.3d 506, 513 (4th Cir. 2019) (quoting Eu v. S.F. City.

Democratic Cent. Comm., 489 U.S. 214, 223, (1989)) (internal quotation omitted).

. See id. at 510 (invalidating Maryland’s SB875, Online Electioneering Transparency and

Accountability Act).

. Id.

. Id. at 514 (quoting Meyer v. Grant, 486 U.S. 414, 425 (1988)) (internal quotations

omitted).

2021 COMBATING FAKE NEWS

“fake news”—the Supreme Court, in a plurality opinion, extended full free

speech protection to a knowing and intentional falsehood.

While content-based laws—those that “target speech based on its

communicative content . . . may be justified only if the government proves

that they are narrowly tailored to serve compelling state interests,”

the

Court has recognized a compelling interest in maintaining the integrity of the

electoral process; however, it has stopped short of extending that to

preventing fraud on the electorate.

Absent reliable data demonstrating that

false speech has significantly undermined the electoral process, however, it

is unlikely that a court would find that this prong had been satisfied.

Notwithstanding the difficulty in demonstrating significant harm, it is

dubious that compelling Internet media companies to curb fake news is the

least restrictive means of achieving that interest.

Federal Legislation

The Communications Decency Act (“CDA”), referred to in the industry

simply as Section 230, was borne from concerns of defamation and

indecency liability to address “the threat that tort-based lawsuits pose to

freedom of speech in the new and burgeoning Internet medium.”

Touted

as “the law that gave us modern Internet,”

Section 230 provides statutory

immunity to online platforms from treatment as a publisher or speaker. The

argument for this shield was a recognition that if Internet media companies

could be liable for all user-generated content that they moderated, they

wouldn’t moderate anything at all.

. U.S. v. Alvarez, 567 U.S. 709, 721-22 (2012) (“This opinion . . . . rejects the notion that

false speech should be in a general category that is presumptively unprotected.”). In Alvarez, the

false speech at issue was Alvarez’s misrepresentation that he had won the Congressional Medal of

Honor.

. Reed v. Town of Gilbert, 135 S.Ct. 2218, 2226 (2015) (citing R.A.V. v. St. Paul, 505

U.S. 377, 395 (1992)).

. Compare Eu v. S.F. City. Democratic Cent. Comm., 489 U.S. 214, 216 (1989) (“A State

indisputably has compelling interest in preserving the integrity of its election process.”), with

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 349 (1995) (“Ohio’s informational interest is

plainly insufficient to support the constitutionality of its disclosure requirement.”).

. 129 F.3d 327, 328, 330 (4th Cir. 1997). While the indecency prong was held

unconstitutional by the Supreme Court, the defamation prong has become a lynchpin of the Internet

ecosystem. Reno v. ACLU, 521 U.S. 844, 874 (1997) (striking down indecency prong).

. Derek Khanna, The Law that Gave Us the Modern Internet –and the Campaign to Kill It,

THE ATLANTIC (Sept. 12, 2013), https://www.theatlantic.com/business/archive/2013/09/the-law-

that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/.

. Matt Laslo, The Fight Over Section 230—and the Internet as We Know It, WIRED (Aug.

13, 2019, 3:18 PM), https://www.wired.com/story/fight-over-section-230-internet-as-we-know-it/.

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HASTINGS COMM/ENT L.J. 43:1

Following judicial decisions holding online providers liable for user

content.

In Zeran v. America Online, the court opined that the specter of

strict liability normally applied to publishers might chill the free flow of

information.

In response, it offered protection for “good Samaritan”

blocking and screening of offensive material to encourage service providers

to self-regulate the dissemination of offensive material over their services.

As Senator Ron Wyden, a drafter of the CDA, notes, this ensured “that

companies in return for that protection—that they wouldn’t be sued

indiscriminately—were being responsible in terms of policing their

platforms.”

Specifically, Section 230 provides that “[n]o provider or user of an

interactive computer service shall be treated as the publisher or speaker of

any information provided by another information content provider.”

interactive service provider is defined as “any information service, system,

or access software provider that provides or enables computer access by

multiple users to a computer server.”

This shield extends to Internet media

companies the relief that their offline counterparts—bookstores, newsstands,

libraries, and other “distributors”—receive under common law.

However, broad judicial interpretation of Section 230 has provided

immunity for conduct far beyond, and likely in direct conflict with, that

which was contemplated by the CDA’s drafters who wanted to incentivize

platforms to clean up the Internet.

As Professor Tushnet opines, “[o]ne

way to explain §230 is that it was enacted in the hope that ISPs would shut

down speech that Congress couldn’t constitutionally ban. From this

perspective, § 230 largely backfired.”

Section 230 has offered platforms

. See e.g., Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup .Ct.

May 24, 1995) (holding that the defendant’s message board was akin to a newspaper, and as such,

by taking steps to police the content of this message board, the defendant engaged in an editorial

function that exposed it to publisher liability).

. Zeran, 129 F.3d 327 at 330 (“the amount of information communicated via interactive

computer services is . . . staggering. The specter of tort liability in an area of such prolific speech

would have an obviously chilling effect.”).

. 47 U.S.C. § 230(c)(2) (2018).

. Alina Selyukh, Section 230: A Key Legal Shield for Facebook, Google Is About to

Change, NPR (Mar. 21, 2018) (quoting Wyden), http://www.wbur.org/npr/591622450/section-

230-a-key-legal-shield-for-facebook-google-is-about-to-change.

. 47 U.S.C. § 230(c)(1) (2018).

. 47 U.S.C. § 230(f)(2) (2018).

. 47 U.S.C. § 230(c)(1) (2018). Immunity extended to interactive service providers is far

from unconditional. The statute provides for exceptions for criminal activity, IP infringement, and

privacy, among others. See 47 U.S.C. § 230(e) (2018).

. Selukh, supra note 37.

. Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First

Amendment, 76 GEO. WASH. L. REV. 986, 1008 n. 96 (2008), https://www.gwlr.org/wp-content/

uploads/2012/08/76-4-Tushnet.pdf.

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“power without responsibility,”

shielding sites that host revenge porn,

child predation,

housing discrimination,

and online sex trafficking.

Internet Media Companies are the Appropriate Vehicles for Regulation

As a result of these two forces, Internet media companies rely on self-

regulatory exercises to address “fake news” with respect to political speech.

Notwithstanding a shield of immunity against liability for third-party

content, Internet media companies engage in a great deal of moderation—

shadow banning, blocking, filtering—when it proves bad for business.

The

lack of government regulation in this space has resulted in a patchwork of

content moderation practices that has garnered the attention—and

frustration—of federal legislators.

Coordinated regulation is the appropriate response to the evolving

media landscape wherein exists a conflict of self-interest, and where political

vulnerability renders the current self-regulatory approach inapt.

Cooperation between public and private entities is a necessary part of 21st

century Internet regulation. Internet media companies are best positioned to

mitigate harm because of their expertise on the issues that arise on their

platforms and the technical requirements necessary to address them, whereas

government regulation is required to provide accountability and an

enforcement mechanism.

Government coordination provides several

important functions, including coordination facilitation, signaling to actors,

behavior modification, and value setting.

. Id.

. See e.g., Patel v. Hussain, 485 S.W.3d 153, 158 (Tex. App. 2016).

. See e.g., Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008), cert denied, 129 S. Ct. 600

(2008); Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), judgment summarily aff’d,

551 F.3d 412 (6th Cir. 2008).

. See e.g., Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist,

Inc., 519 F.3d 666 (7th Cir. 2008); Housing Council of San Fernando Valley v. Roommates.com,

LLC, 521 F.3d 1157 (9th Cir. 2008).

. See e.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009). Recognizing that

judicial interpretation had stretched liability protection beyond its original intent, Congress cabined

Section 230’s immunity with the passage of the Stop Enabling Sex Traffickers Act (SESTA)/ Allow

States and Victims to Fight Online Sex Trafficking Act (FOSTA) legislation. The controversial

amendment provided a carve out in immunity from federal civil and state criminal liability for

services that “promote and facilitate prostitution.”

. See e.g., DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE, 229 (2014)

(discussing how Facebook changed its position on pro rape pages after fifteen companies threatened

to pull their ads).

. Laslo, supra note 32; Casey Newton, Everything You Need to Know About Section 230,

THE VERGE (Mar. 3, 2020, 9:20 AM EST), https://www.theverge.com/2020/3/3/21144678/section-

230-explained-internet-speech-law-definition-guide-free-moderation.

. Wood, supra note 7.

. Id at 1244.

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HASTINGS COMM/ENT L.J. 43:1

Technology companies, including Facebook, have signaled their

support for modernizing the law to hold Internet media companies

accountable for behavior on their platforms

and more recently the

platforms have been more amenable to a new regulatory framework.

The U.S. Regulatory Scheme: Industry Self-Regulation of

“Fake News” in Online Political Speech

Benefits of Self-Regulation

According to proponents, “the benefits of industry self-regulation are

apparent: speed, flexibility, sensitivity to market circumstances and lower

costs.”

Moreover, when standard setting is executed by industry insiders

with deep subject-matter expertise, the resulting standards are arguably more

practicable and more effectively policed.

Proponents also maintain that

industry accountability raises standards of behavior through a combination

of peer pressure and an internalized sense of responsibility. This elevated

standard of behavior is perhaps evident in the Internet Media companies’

response to the global pandemic of COVID-19.

It is notable, however, that the Internet media ecosystem appears

divorced from a typical industry self-regulation model wherein there is “an

industry-level organization that regulates its members by setting rules and

standards about how they should conduct their business.”

Instead,

individual companies have scrambled to provide the appropriate regulatory

scaffolding—and stave off regulation.

. See Mark Zuckerberg, Mark Zuckerberg: The Internet needs new rules. Let’s start in

these four areas, WASH. POST (Mar. 30, 2019, 3:00 p.m. EDT), (“I believe we need a more active

role for governments and regulators. By updating the rules for the Internet, we can preserve what’s

best about it—the freedom for people to express themselves and for entrepreneurs to build new

things—while also protecting society from broader harms.”), https://www.washingtonpost.com/

opinions/mark-zuckerberg-the-internet-needs-new-rules-lets-start-in-these-four-areas/2019/03/29/

9e6f0504-521a-11e9-a3f7-78b7525a8d5f_story.htm.

. Facebook CEO Mark Zuckerberg released a white paper detailing potential regulation

and its impact on platform content moderation. See Monika Bickert. Charting A Way Forward:

Online Content Regulation, FACEBOOK (Mar. 2020), https://about.fb.com/wp-content/uploads/

2020/02/Charting-A-Way-Forward_Online-Content-Regulation-White-Paper-1.pdf.

. Neil Gunningham & Joseph Rees, Industry Self-Regulation: An Institutional Perspective,

19 LAW & POL’Y 363, 366 (1997).

. See id.

. Internet media companies quickly developed strategies to provide their users with

authoritative information on the virus, employed tools to combat misinformation, and provided data

for research. See e.g., Jonathan Shieber, Zuckerberg details the ways Facebook and Chan

Zuckerberg Initiative are responding to COVID-19, TECHCRUNCH (Mar. 3, 2020, 8:20 PM PST),

https://techcrunch.com/2020/03/03/zuckerberg-details-the-ways-facebook-and-chan-zuckerberg-

initiative-are-responding-to-covid-19/.

. Wood, supra note 7.

2021 COMBATING FAKE NEWS

The Dark Side of Self-Regulation

In practice, self-regulation often faces backlash for its perceived self-

interested behavior. Cynics decry self-regulation as a façade by which

industry “give[s] the appearance of regulation thereby warding off more

direct and effective government intervention while serving private interests

at the expense of the public.”

Critics admonish that self-regulatory standards are usually lax and

enforcement is ineffective.

Detractors also note that absent from self-

regulation are many of the virtues of conventional public regulation, namely,

“visibility, credibility, accountability, compulsory application to all[,] . . .

greater likelihood of rigorous standards being developed, cost spreading, . . .

and availability of a range of sanctions.”

Left to their own devices, concern has arisen that content moderation

strategies adopted by Internet media companies may not comport with

customary First Amendment norms and doctrine. As legal scholars

highlight, Internet media companies “lack a coherent theory of the First

Amendment.”

Platforms are not “merely venues for debates in the

marketplace of ideas,” neither are they “exclusively supportive of speakers’

personal autonomy,” nor have they “taken a [] deliberation-enhancing

approach to speech . . . [that] should promote political engagement and

public discourse.”

Instead, the largest players in the Internet media

landscape have camped out in their respective corners, leaving the field an

“inconsistent amalgam” of these values.

Writ large, there is reason to be concerned with putting speech

regulation wholly in the hands of private corporations. As Verge tech

reporter Casey Newton points out, “[i]f you don’t want the state making calls

on political speech, you probably don’t want a quasi-state with 2.1 billion

daily users making calls on political speech, either.”

U.S. Social Media Self-Regulation—Case Study: Drunk Nancy Pelosi

A recent fake news story circulating in U.S. news aptly illustrates the

dissemination and amplification of fake news at a scale impossible via

. Gunningham, supra note 55 at 369-70.

. See id. at 370.

. Id.

. Wood, supra note 7.

. Id.

. Casey Newton, Why Facebook can’t stop politicians from lying, THE VERGE (Oct. 9,

2019 6:00 AM EDT), https://www.theverge.com/interface/2019/10/9/20904516/facebook-politi

cal-ad-lies-regulation.

5/26/21

HASTINGS COMM/ENT L.J. 43:1

traditional media. The online sphere is the critical factor because of the

speed, anonymity, and volume of content it allows. On Wednesday, May

23, 2019, an altered video that made it appear that House Speaker Nancy

Pelosi was drunk began to circulate broadly across social media platforms.

On Thursday evening, following a Fox Business news segment in which

panelists speculated about the House Speaker’s health and fitness for office,

President Donald Trump himself tweeted and then pinned to his profile

another manipulated video of the House Speaker to his estimated 60 million

Twitter followers.

The altered video with the caption, “PELOSI

STAMMERS THROUGH NEWS CONFERENCE” was slowed down to

make her voice sound sluggish and her words appear slurred.

The

combination of the two videos and speculation about the Speaker’s health

quickly gained attention. National media outlets immediately published

critical responses about the particular brand of misinformation at play, a

“shallow fake,” and called for Internet media companies to take action.

The incident illustrates not only the role that online media companies

can play in amplifying “fake news” but the way in which such “fake news”

can make its way into mainstream news discourse. Internet media companies

engage in varying degrees of regulating online political speech through their

community standards and terms of service. Google’s YouTube took swift

action to remove the video.

However, Facebook’s community standards

do not require that information posted on the platform is true.

Instead, its

policy at the time that the video was posted was to refer it to third-party fact

checkers for review.

The third-party fact checkers rated the video as false,

and in accordance with the social media platform’s policy, downgraded the

video’s distribution and provided additional context where it appeared in

. Drew Harwell, Faked Pelosi Videos, Slowed to Make Her Appear Drunk, Spread Across

Social Media, WASH. POST (May 24, 2019, 4:41 PM EDT), https://www.washingtonpost.com/

technology/2019/05/23/faked-pelosi-videos-slowed-make-her-appear-drunk-spread-across-social-

media/.

. Donald J. Trump (@realDonald Trump), TWITTER (May 23, 2019, 6:09 PM), https://

twitter.com/realdonaldtrump/status/1131728912835383300; see also Emily Stewart, What’s Up

With Twitter’s Follower Counts, Explained for Everyone — Including Trump, VOX (Apr. 24, 2019,

5:10 PM EDT), https://www.vox.com/2019/4/24/18514772/twitter-trump-followers-meeting-jack-

dorsey.

. Id.

. “Shallow fake” is a term used to describe the traditional-alteration and selective editing

of video and imagery. See Kalev Leetaru, The Real Danger Today is Shallow Fakes and Selective

Editing Not Deep Fakes, FORBES (Aug. 26, 2019, 1:11 PM EDT), https://www.forbes.com/sites/

kalevleetaru/2019/08/26/the-real-danger-today-is-shallow-fakes-and-selective-editing-not-deep-

fakes/#607cae1f4ea0.

. Donnie O’Sullivan, Doctored Videos Shared to Make Pelosi Sound Drunk Viewed

Millions of Times On Social Media, CNN (May 24 2019, 12:31 PM), https://www.cnn.

com/2019/05/23/politics/doctored-video-pelosi/index.html.

. Id.

2021 COMBATING FAKE NEWS

users’ news feeds.

Nonetheless, one version of the video had 2.5 million

views on its platform in just 12 hours after the video was posted.

Internet Media Companies’ Varied Approaches to Self-Regulation in the

U.S.

On one end of the spectrum, Twitter announced an outright ban on

political advertising on its platform.

Twitter CEO, Jack Dorsey recognizes

the shift that the Internet presents in the ways that political information is

consumed. Dorsey explained in a tweet that “Internet political ads present

entirely new challenges to civic discourse—machine-learning-based

optimization of messaging and microtargeting, unchecked misleading

information and deep fakes, all at increasing velocity, sophistication and

overwhelming scale.”

Though the move was largely viewed as symbolic,

it sets the social media platform apart in the Internet media ecosystem. With

digital advertising costing a fraction of traditional television advertising,

observers decry the move as disadvantaging challengers while supporting

entrenched candidates.

In May 2020, Twitter took further action and began

applying a new label to tweets that contain potentially misleading

information about voting processes.

For example, a new label prompting

Twitter users to “Get the facts about mail-in ballots” accompanied a set of

tweets in which the president railed against mail-in voting methods as

“fraudulent”

Following Twitter’s announcement of its ban on political

advertisements, Google, announced an update to its political advertising

policy, with the goals to “protect campaigns, surface authoritative election

. Id.

. Kate Conger, Twitter Will Ban All Political Ads, C.E.O. Jack Dorsey Says, N.Y. TIMES

(Oct. 30, 2019), https://www.nytimes.com/2019/10/30/technology/twitter-political-ads-ban.html.

. Jack Dorsey (@jack), TWITTER (Oct. 30, 2019, 1:05 PM), https://twitter.com/

jack/status/1189634369016586240.

. It should be noted that Twitter’s political advertising comprised a small fraction of its

advertising business. Moreover, the free exposure that the platform provides politicians more than

accounts for any loss in advertising opportunity. For example, according to The Guardian’s

Shannon McGregor, 80% of President Trump’s tweets make their way into mainstream media,

garnering media exposure. That exposure was valued at an estimated $2bn during the 2016 election

cycle. See generally Shannon C. McGregor, Why Twitter’s Ban on Political Ads Isn’t As Good As

it Sounds, THE GUARDIAN (Nov. 4, 2019, 6:00 EST), https://www.theguardian.com/comment

isfree/2019/nov/04/twitters-political-ads-ban.

. McGregor, supra, note 76.

. See Yoel Roth & Nick Pickles, Updating Our Approach to Misleading Information,

TWITTER: BLOG (May 11, 2020), https://blog.twitter.com/en_us/topics/product/2020/updating-our-

approach-to-misleading-information.html.

. Makena Kelly, Twitter Labels Trump Tweets As ‘Potentially Misleading’ for the First

Time, THE VERGE (Mar. 26, 2020, 6:04 PM EDT), https://www.theverge.com/2020/

5/26/21271207/twitter-donald-trump-fact-check-mail-in-voting-coronavirus-pandemic-california.

5/26/21

HASTINGS COMM/ENT L.J. 43:1

news, and protect elections from foreign interference.”

Attempting to align

itself with traditional media outlets, such as TV, radio, and print, Google has

prohibited political campaigns from engaging in microtargeting, an

advertising technique that uses consumer data, online behavior, and

demographics to tailor messaging.

Microtargeting has been viewed as “the

online equivalent of whispering millions of different messages into zillions

of different ears for maximum effect and with minimum scrutiny.”

particular, political campaigns are no longer permitted to target “affinity

audiences” or “remarket,”—serve ads to people who’ve previously taken an

action, for instance visiting a campaign’s website.

Striking at the heart of

the problem of fake news, advertisements with “demonstrably false claims

that could significantly undermine participation or trust” in elections are now

banned.

On the other end of the spectrum, Facebook has made the controversial

decision to continue to allow political “fake news” to propagate across its

platform. Instead, Facebook’s policy is merely to provide additional context,

by way of “related news” links appearing next to “fake news.” By late July

2020 pressure on Internet media companies to label potentially misleading

information led Facebook to adopt what critics decry as a half-measure. The

platform implemented a new policy to add a link to official voting

information to any post about voting, whether the post is John Q. Citizen or

a political candidate and regardless of whether the content is accurate.

Facebook’s stance on not fact checking advertisements from politicians can

be explained, at least in part, by what Professor Philip Napoli identifies as “a

First Amendment tradition that has valorized the notion of

counter[]speech.”

Facebook’s community standards prohibit “misinformation” defined as

“ads that include claims debunked by third-party fact checkers or, in certain

circumstances, claims debunked by organizations with particular

. Scott Spencer, An Update on Our Political Ads Policy, GOOGLE: THE KEYWORD (Nov.

20, 2019), https://www.blog.google/technology/ads/update-our-political-ads-policy/.

. Daisuke Wakabayashi & Shane Goldmacher, Google Policy Change Upends Online

Plans for 2020 Campaigns, N.Y. TIMES (Nov. 20, 2019), https://www.nytimes.com/2019/

11/20/technology/google-political-ads-targeting.html.

. Kara Swisher, Google Changed Its Political Ad Policy. Will Facebook Be Next?, N.Y.

Times (Nov. 22, 2019), https://www.nytimes.com/2019/11/22/opinion/google-political-ads.html.

. Id.

. Spencer, supra, note 81.

. Shirin Ghaffary, Facebook’s New Label on a Trump Post Is an “Abject Failure,” Says a

Biden Campaign Spokesperson, VOX (July 21, 2020, 7:12 PM EDT), https://www.vox.com/

recode/2020/7/21/21333001/facebook-label-trump-fact-check-biden-democrats-republicans-2020

-elections-policy.

. Phillip M. Napoli, What If More Speech Is No Longer the Solution? First Amendment

Theory Meets Fake News and the Filter Bubble, 70 FED. COMM. L.J. 55, 58 (2018) (internal

quotations omitted); see e.g., Alvarez, 567 U.S. at 727 (“The remedy for speech that is false is

speech that is true.”).

2021 COMBATING FAKE NEWS

expertise.”

While paid political advertising must conform to the platform’s

community standards, Facebook VP of Global Affairs and Communications,

Nick Clegg, clarified that most political advertisements would be exempt

from the platform’s fact-checking.

The platform has not addressed the hot-

button issue of microtargeting. Political strategists highlight Facebook’s

desire to walk the fine line between moderating content and alienating

groups who leverage the platform’s access to an estimated 70% of American

adults

in their campaign fundraising efforts.

Facebook’s practices allow it to adopt an approach that, on the one

hand, espouses transparency whereby political advertisements are available

to the public so that researchers, journalists, and John Q. Citizen can

investigate the content of those ads themselves, while on the other hand

continuing to advance a business model predicated on generating advertising

revenue by exerting near-total control of users’ online experience.

Legislators have cautioned that Internet media companies are abusing

the immunity extended to them by the Communications Decency Act.

Some have indicated that removal of such immunity is not out of the

question, and were Congress to act, it would end the self-regulation regime

in the U.S., moving things more in line with the E.U. model.

Current State of Online Political Speech in the E.U.

The Action Plan against Disinformation

The model for combating fake news in the European Union stands in

direct contrast to the self-regulatory framework of the U.S. Europe has

traditionally favored regulation over freedom of expression. Identifying fake

news as a “threat to democratic political and policy-making processes,” the

European Union has a adopted a public governance approach combating it.

While incompatible with the First Amendment, a comparative overview of

. Advertising Policies, FACEBOOK, https://www.facebook.com/policies/ads (last visited

July 7, 2020).

. Facebook, Elections and Political Speech, FACEBOOK: NEWSROOM (Sept. 24, 2019,

https://about.fb.com/news/2019/09/elections-and-political-speech/ (“We don’t believe [ ] that it’s

an appropriate role for us to referee political debates and prevent a politician’s speech from reaching

its audience and being subject to public debate and scrutiny.”).

. John Gramlich, 10 Facts About Americans and Facebook, PEW RSCH. CTR. (May 16,

2019), https://www.pewresearch.org/fact-tank/2019/05/16/facts-about-americans-and-facebook/.

. Mike Isaac, Why Everyone is Angry at Facebook Over its Political Ads Policy, N.Y.

TIMES (Sept. 4, 2020), https://www.nytimes.com/2019/11/22/technology/campaigns-pressure-face

book-political-ads.html.

. See Recode Decode, Speaker of the House Nancy Pelosi Says Tech Immunity “Could Be

in Jeopardy”, VOX (Apr. 12, 2019), https://www.vox.com/podcasts/2019/4/11/18306834/nancy-

pelosi-speaker-house-tech-regulation-antitrust-230-immunity-kara-swisher-decode-podcast.

. Id.

5/26/21

HASTINGS COMM/ENT L.J. 43:1

public regulation of online political speech in the European Union highlights

three phenomena: (1) a technological capacity to address “fake speech” in

more direct ways, (2) a workable framework for engaging third-party

organizations so as to avoid being “arbiters of truth,” and (3) the need for

regulation to modify platform behavior for the public good.

Since 2015, following a decision of the European Counsel in response

to Russian disinformation campaigns, the E.U. has been actively regulating

disinformation,

defined as “verifiably false or misleading information

created, presented and disseminated for economic gain or to intentionally

deceive the public.”

In 2018, the European Commission took additional

steps to crack down on “fake news,” adopting The Action Plan against

Disinformation (“The Plan”).

The first prong of The Plan focuses on

improving detection of disinformation, through investment in additional

staff, data analysis tools, and public education efforts.

In the second prong

of the plan, the E.U. implemented a coordinated alert system among E.U.

institutions and member states to respond to disinformation threats in real

time.

With respect to U.S. efforts, the third prong of the approach is

noteworthy. The third prong of the approach included the adoption of a self-

regulatory Code of Practice on Disinformation as a component of its Action

Plan against Disinformation. Among seven European trade associations,

U.S. signatories to the Code of Practice include Internet media companies

Facebook, Google, Microsoft, Mozilla, and Twitter.

The Code of Practice

seeks to ensure transparency in political advertising, the shuttering of fake

accounts, identifying non-human interactions, and cooperating with fact-

checkers to detect disinformation and widely promote fact-checked

content.

100

Each signatory presented detailed roadmaps highlighting the

tools to be deployed against fake news.

101

E.U. Public Regulation of Fake News in Online Political Speech

Transparency, accountability, and consumer protection are often touted

benefits of public regulation. Detractors argue that federal regulation may

. Press Release IP/18/6647, European Commission , A Europe that Protects: The EU Steps

Up Action Against Disinformation (Dec. 5, 2018).

. European Commission, Policy on Tackling Online Disinformation, https://ec.europa.eu/

digital-single-market/en/tackling-online-disinformation (July 7, 2020).

. Press Release, supra, note 93.

. Id.

. Press Release STATEMENT/19/6166, European Commission, Code of Practice on

Disinformation One Year on: Online Platforms Submit Self-Assessment Reports (Oct. 29, 2019).

. Id.

100

. Id.

101

. European Commission, News article on Roadmaps to Implement the Code of Practice on

Disinformation, https://ec.europa.eu/digital-single-market/en/news/roadmaps-implement-code-pra

ctice-disinformation (July 7, 2020).

2021 COMBATING FAKE NEWS

be excessively burdensome. Researchers point to three phenomena that

undermine the utility of public regulation. “First, agencies intermittently

overreact to crises, and years, if not decades, may pass before guidelines

developed in the aftermath of crises are corrected. Second, government

agencies are not liable for inefficient rules, undermining the financial

accountability necessary to incentivize efficient rulemaking and thereby

potentially promoting over-regulation.”

102

The pace of industry transition

exacerbates the shortcomings of general agency regulation with rapid

technological evolution outpacing government regulation. This is evident in

the conversation on the Hill with respect to modernizing the twenty-four year

old Communications Decency Act that was penned almost a decade before

Facebook, was founded.

Other detractors condemn government regulation as exceedingly

flexible and under-enforced for a myriad of reasons: lack of resources,

insular perspectives of government, self-serving administrators, or

regulatory capture.

103

Moreover, changes between administrations may lead

to vacillation between standards.

104

The revolving door between political

appointments and private sector executive suites may also foster a climate

whereby administrators may seek to improve their prospects in industry by

advancing the agenda of interest groups that desire loose policies.

105

E.U Social Media Public Regulation – Case Study: Maria and the Mafia

In November 2017, in the weeks before Italy’s national election,

photographs began to circulate that purported to show Maria Elena Boschi,

a prominent lawmaker and member of former Prime Minister Matteo Renzi’s

ruling Democratic Party, at a funeral mourning the recent death of the

notorious mafia boss Salvatore “Toto” Riina.

106

The doctored picture

included the a caption: “Look who was there to say one last goodbye to Toto

Riina?”

107

The photo, shared by a Facebook account with a profile image

which appeared to attribute the post to opposition political party, 5 Star

Movement (Virus5Steelle) is real—taken at a 2016 funeral of a Nigerian

refugee who was murdered. The account was later determined to a fake.

108

Without a disinformation policy in place, the Italian government was

dependent on Facebook to police the fake news. “We ask the social

102

. Ronen Avraham, Private Regulation, 34 HARV. J.L. & PUB. POL’Y 543, 556–69 (2011).

103

. Id. at 568–69.

104

. Id.

105

. Id.

106

. Andrés Jiménez, Italy Fights for a Fake News-free Election, MEDIUM (Mar. 1, 2018),

https://medium.com/@BrydenJimenez/italy-fights-for-a-fake-news-free-election-b3cdea1b1952.

107

. Paul Harrison, Italy’s Vote: Fake Claims Attempt to Influence Election, BBC NEWS (Mar.

3, 2018), https://www.bbc.com/news/world-europe-43214136.

108

. Id.

5/26/21

HASTINGS COMM/ENT L.J. 43:1

networks, and especially Facebook, to help us have a clean electoral

campaign,” said Mr. Renzi.

109

Boschi herself took to Facebook to decry the

fake news with the hashtag #nofakenews.

110

Following pleas of help from

the Italian government, Facebook announced a fact-checking program

similar to the U.S. program that relies on third-party fact checkers and user

reporting aimed at identifying and debunking false information. The

program works with third-party fact-checking organizations to develop

additional fact-checking reporting which is then posted prominently near the

false story and subsequently demoted on the Facebook algorithm.

111

Unlike

the U.S. program, when a user attempts to share the fake news, a notification

alerts them of the disputed content and refers them to additional

information.

112

The Italian government has dedicated resources to educate

its citizenry on detecting fake news.

113

This situation demonstrates the

vulnerability of the political process to come under attack by unknown

perpetrators and the facility with which Internet media companies can take

reasonable steps to combat fake news.

Italy’s antitrust chief enforcer, Giovanni Pitruzella argued that the

distribution of fake news violates European citizen’s “right to be

pluralistically informed.”

114

Moreover, he urged the government to get

involved in verifying information and the removal of “fake news” to avoid

“group polarization.”

115

As Justice Kennedy cautioned in United States v.

Alvarez, the government serving as arbiter of what is fake is simply

untenable in the United States as incompatible with the First Amendment.

In his words,

[p]ermitting the government to decree [false] speech to be a

criminal offense . . . would endorse government authority to

compile a list of subjects about which false statements are

punishable. . . . Our constitutional tradition stands against the idea

that we need Oceania’s Ministry of Truth.

116

109

. Jason Horowitz, Italy, Bracing for Electoral Season of Fake News, Demands Facebook’s

Help, N.Y. TIMES (Nov. 24, 2017), https://www.nytimes.com/2017/11/24/world/europe/italy-

election-fake-news.html.

110

. Jiménez, supra, note 106.

111

. Yasmeen Serhan, Italy Scrambles to Fight Misinformation Ahead of Its Elections, THE

ATLANTIC (Feb. 24, 2018), https://www.theatlantic.com/international/archive/2018/02/europe-

fake-news/551972/.

112

. Id.

113

. Id.

114

. Flemming Rose & Jacob Mchangama, History Proves How Dangerous it is to Have the

Government Regulate Fake News, WASH. POST (Oct. 3, 2017, 12:40 PM EDT), https://www.

washingtonpost.com/news/theworldpost/wp/2017/10/03/history-proves-how-dangerous-it-is-to-

have-the-government-regulate-fake-news/?utmterm=.09ca37c89516.

115

. Id.

116

. Alvarez, 67 U.S. at 723.

2021 COMBATING FAKE NEWS

Other European countries have taken definitive steps to legislate fake

news. In 2017, the German Bundestag passed the Network Enforcement Act,

an “Act to Improve Enforcement of the Law in Social Networks”

(“NetzDG”), a law that requires Internet media companies with greater than

two million registered users to block and delete illegal content, while

increasing transparency and accountability of platform content removals,

subject to monetary fines up to €5 million for noncompliance.

117

Notably,

NetzDG mandates that platforms “remove[] or block[] access to content that

is manifestly unlawful within 24 hours of receiving the complaint.”

118

The law has come under fire, in relevant part with respect to “fake

news,” because it provides that “the decision regarding the unlawfulness of

the content is dependent on the falsity,” which is determined by the platforms

themselves.

119

Volker Tripp, political director of the non-profit internet

rights organization Digitale Gesellschaft (“digital society”) noted that

“unilaterally shifting this responsibility onto companies is legally

questionable and on top of that not productive.”

120

Though Facebook ran

afoul of NetzDG for allegedly underreporting the complaints that the

platform received,

121

critics assert that the law incentivizes companies to

“delete in doubt” because it compels decision-making within such a short

time period.

122

Internet Media Companies’ Response to Public Regulation

In response to the German law, each of the “Big Three” online media

companies, Google, Facebook, and Twitter, took differing compliance

approaches. Google and Twitter developed an integrated NetzDG flagging

117

. Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken [NetzDg]

[Network Enforcement Act], Sept. 7, 2017, BUNDESGESETZBLATT Teil I [BGBL I], no. 61 (Ger.),

translated in Aktuelle Gesetzgebungsverfahren, BUNDESMINISTERIUM DER JUSTIZ UND FÜR

VERBRAUCHERSCHUTZ (July 12, 2017), https://www.bmjv.de/SharedDocs/Gesetzgebungsverfah

ren/Dokumente/NetzDG_engl.pdf?__blob=publicationFile&v=2.

118

. Id.

119

. Id.

120

. Ben Knight, Germany Implements New Internet Hate Speech Crackdown, DEUTSCHE

WELLE (Jan. 1 2018), https://www.dw.com/en/germany-implements-new-internet-hate-speech-

crackdown/a-41991590.

121

. Conference Paper, Ben Wagner et al., Regulating Transparency? Facebook, Twitter and

the German Network Enforcement Act, FAT* ‘20, 8 (Jan. 27–30, 2020), (“[U]ser complaints per

million users listed in NetzDG transparency reports [between 2018 and 2019] are between 7236

and 26215 times higher on Twitter than they are on Facebook.”), https://benwagner.org/wp-

content/plugins/zotpress/lib/request/request.dl.php?api_user_id=2346531&dlkey=ZWMEVW3R

&content_type=application/pdf.

122

. Linda Kintstler, Germany’s Attempt to Fix Facebook Is Backfiring, THE ATLANTIC (May

18, 2018), https://www.theatlantic.com/international/archive/2018/05/germany-facebook-afd/56

0435/.

5/26/21

HASTINGS COMM/ENT L.J. 43:1

100

tool whereby users can directly report objectionable content.

123

In contrast,

Facebook has embedded its NetzDG complaint form in its Help Center.

124

Facebook’s dedicated team first reviews reported content for compliance

with Facebook’s community standards.

125

Content found in violation of the

platform’s community standards are removed globally. If the content is

violative of NetzDG but does not run afoul of the community standards, the

content is blocked in Germany and reported. This two-step review process

and the obscured location may be attributable to the relatively lower

reporting rates discussed above.

126

Twitter has likewise assembled a compliance team of 50 staff

specifically designed to address NetzDG complaints according to the

NetzDG’s narrower definition of illegal content.

127

Elsewhere, content is

first reviewed according to Twitter’s terms and conditions.

128

Google’s team

removes most content for violating community guidelines, rather than

NetzDG noting that the two “have a large degree of overlap.”

129

While the

platforms handle most takedowns internally, both Facebook and Google

work in collaboration with a voluntary intermediary to review questionable

content within the mandated 7-day timeframe.

130

Testing the Regulatory Boundaries of Online Political Speech

in the U.S.

Under the existing jurisprudential framework, the United States

government appears relegated to taking no more than small steps to combat

fake news.

131

The United States government frequently requests that Internet

media companies remove content or delete user accounts that the

123

. WILLIAM ECHIKSON & OLIVIA KNODT, GERMANY’S NETZDG: A KEY TEST FOR

COMBATTING ONLINE HATE, 1, 7 (CEPS Policy Insight, 2018), https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=3300636.

124

. Id.

125

. Id. at 8.

126

. Id.

127

. Id. at 11.

128

. Id.

129

. Id. at 10.

130

. Id. at 12.

131

. First Amendment protections limit the government’s ability to regulate political speech;

however, other federal national security and campaign finance laws compel transparency and

disclosure. See 52 U.S.C. §30121 (2012) (discussing contributions and donations by foreign

nationals); 11 C.F.R. §110.20 (2017) (prohibiting contributions, donations, expenditures,

independent expenditures, and disbursements by foreign nationals).

2021 COMBATING FAKE NEWS

101

government finds problematic.

132

Such requests go unanswered.

133

number of federal legislative proposals have been advanced to update the

government’s toolbox in its battle against “fake news.”

The Honest Ads Act

Spurred in part by allegations of attempted election interference by

Russian nationals, in October 2017, Senators Amy Klobuchar (D-MN),

Mark Warner (D-VA), and the late Senator John McCain (R-AZ) introduced

the Honest Ads Act, which would extend existing campaign finance

regulations for broadcast advertising to online platforms.

134

The Honest Ads

Act would subject Internet media companies to transparency and record-

keeping requirements.

135

The bill stalled; however, it was reintroduced in

May 2019, again with bipartisan co-sponsorship and bolstered by industry

support.

136

The Online Electioneering Transparency and Accountability Act

States have also entered the battle to protect the integrity of the nation’s

electoral process. The Maryland law, SB 875, the Online Electioneering

Transparency and Accountability Act, took effect in July 2018. Drawing

from language in the Honest Ads Act, the law extended Maryland’s existing

campaign finance regulation law governing traditional media in two critical

ways with an eye toward the Internet domain. First, the new law added

online advertisements to the record-keeping and disclosure requirements.

Specifically, the record-keeping and disclosure provision required online

platforms to disclose the identity of an ad purchaser, the individuals who

exercise control over the purchaser, and the total amount paid for the ad.

This information was required to be maintained for inspection for up to a

year following an election. Second, the state extended its reach to “online

132

. See e.g., Transparency Report: United States of America, TWITTER, https://trans

parency.twitter.com/en/countries/us.html (last visited Mar. 9, 2020) [hereinafter Transparency

Report].

133

. Id. (Of the 170 removal requests made on behalf of the U.S. government between January

and June 2019, identifying 732 accounts, Twitter complied with zero requests).

134

. The rules, which also banned foreign nationals from paying for ads that mention political

candidates leading up to elections, are outlined in the Bipartisan Campaign Reform Act (BCRA)

of 2002, also known as McCain-Feingold, which laid out the requirements for “electioneering

communications” in broadcast, cable, and satellite communications. Bipartisan Campaign Reform

Act, Pub. L. 107-155, 116 Stat. 81 (2002).

135

. Honest Ads Act, S. 1989, 115th Cong. (2017). The Bipartisan Campaign Reform Act

(BCRA) of 2002, also known as McCain-Feingold, which laid out the requirements for

“electioneering communications” in broadcast, cable, and satellite communications, served as a

blueprint for the bill. The Honest Ads Act also banned foreign nationals from paying for ads that

mention political candidates leading up to elections.

136

. Honest Ads Act, S. 1356, 116th Cong. (2019).

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platforms,” defined as “any public facing website . . . including a social

media network or search engine that has 100,000 or more . . . visitors.”

137

Publishers, including The Washington Post and The Baltimore Sun,

challenged the new law on First Amendment grounds because the disclosure

requirements compelled the publishers to engage in speech. The Fourth

Circuit sitting en banc affirmed a federal district court’s decision to enjoin

enforcement of the record-keeping and disclosure requirements, raising

several First Amendment grounds: (1) the Act is an impermissible content-

based regulation on speech; (2) “the Act concerns content that is ordinarily

shielded within “the heart of the First Amendment’s protection,”

138

and (3)

the Act compels speech. “In sum, it is apparent that Maryland’s law creates

a constitutional infirmity distinct from garden-variety campaign finance

regulations.”

139

Notwithstanding the bipartisan support that the Honest Ads Act

garnered and the passage of the state legislation, both efforts are ill-suited to

address “fake news” because their focus on paid advertising overlooks the

volume of Internet-enabled “cheap speech.”

140

The economic implications of

potentially anyone disseminating speech “have undermined mediating and

stabilizing institutions of American democracy including newspapers and

political parties, with negative social and political consequences.”

141

Proposed Executive Order

The assault on fake news in the United States reached a fever pitch on

May 28, 2020, as President Trump released an Executive Order that takes

aim at the intermediary liability protections that Section 230 extends to

Internet media companies.

142

The Executive Order appears to be a reboot of

a 2017 draft that received renewed attention from the administration after

two of the President’s tweets on mail-in voter fraud were flagged as

misleading.

143

Striking at the heart of Communications Decency Act,

137

. S. 875, 2018 Gen. Assemb., 438th Sess. (Md. 2018) (Online Electioneering Transparency

and Accountability Act).

138

. See McManus, 944 F.3d at 514.

139

. Id. at 517.

140

. Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805, 1807

(1995).

141

. Symposium, Cheap Speech and What It Has Done (to American Democracy), 16 FIRST

AMEND. L. REV. 200, 201 (2017).

142

. Exec. Order No. 13925, 85 Fed. Reg. 34079 (May 28, 2020).

143

. The 2020 Executive Order follows a 2017 draft Executive Order which arose from

concerns of political bias and is supported by a purported 15,000 anecdotal complaints of political

censorship on social media platforms. However, accusations of political bias remain unproven.

See Shiva Stella, Public Knowledge Responds to White House Proposal to Require FTC, FCC to

Monitor Speech on Social Media, PUBLIC KNOWLEDGE (Aug. 9, 2019), https://www.public

knowledge.org/press-release/public-knowledge-responds-to-white-house-proposal-to-require-ftc-

fcc-to-monitor-speech-on-social-media/; Casey Newton, Why Twitter Labeling Trump’s Tweets As

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103

Section 230, the Executive Order calls for government review of Internet

media companies’ content moderation practices, declaring that “[w]e must

seek transparency and accountability from online platforms, and encourage

standards and tools to protect and preserve the integrity and openness of

American discourse and freedom of expression.”

144

The Executive Order, “Preventing Online Censorship,” addresses

perceived bias by Internet media companies in moderating political

speech.

145

The White House seeks to curtail the good-faith provision of the

Communications Decency Act by imposing additional obligations on

Internet media companies seeking liability protections.

146

Specifically, the

Executive Order attempts to tie the “good faith” liability shield in Section

230(c)(2), which immunizes platforms from liability arising from “any

action voluntarily taken in good faith to restrict access to or availability of

material that the provider or user considers to be obscene . . . or otherwise

objectionable,” to the protections in Section 230(c)(1), which protects

platforms from being treated as speakers. The Executive Order invokes

sweeping government action to regulate Internet media companies. Among

other actions, the order directs the National Telecommunications and

Information Administration to file a petition for rulemaking with the Federal

Communications Commission to “propose regulations to clarify” the scope

of Section 230, directs the Federal Trade Commission to report on

complaints of political bias, instructs the Department of Justice to investigate

allegations of anti-conservative bias, and prevents federal agencies from

advertising on platforms that allegedly violate Section 230’s good faith

principles. Notwithstanding the jurisdictional and constitutional concerns

that it raises, the Executive Order demonstrates a political openness to

stipulate safe harbors for Internet media companies to retain liability

protection.

147

Proposed Model: Coordinated Regulation through

“Reasonable Standards”

The growing political will in both the legislative and executive branches

to revisit the regulation of Internet media companies represents a moment to

exercise reasonableness in addressing the 26 words that created the Internet.

“Potentially Misleading” Is a Big Step Forward, THE VERGE: THE INTERFACE (May 27, 2020,

5:01 PM EDT), https://www.theverge.com/interface/2020/5/27/21270556/trump-twitter-label-mis

leading-tweets.

144

. Executive Order, supra, note 142.

145

. See Brian Fung et al., Trump Signs Executive Order Targeting Social Media Companies,

CNN POLITICS (May 28, 2020, 9:22 PM ET), https://www.cnn.com/2020/05/28/politics/trump-

twitter-social-media-executive-order/index.html.

146

. Id.

147

. Id.

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A coordinated regulatory approach would capitalize on the strengths and

virtues of industry self-regulation, while accounting for its weaknesses as a

self-interested body.

Professors Danielle Citron and Benjamin Wittes advance a proposition

that conditions immunity not on a platform’s content moderation, but rather

on the platform’s design choices. This “precision regulation” approach

would strip immunity for Internet media companies whose “design choices

[ ]amounted to a failure to take reasonable steps to prevent or address

unlawful uses of its services.”

148

What is more, observers have noted that

the harms resulting from “fake news” are less about what is shared, rather

than how it is shared.

149

After all, the Internet has revolutionized the speed

and volume with which fake news is propagated. What users see is

determined entirely by the algorithms deployed by Internet media companies

that rank and prioritize content. “They design and predict nearly everything

that happens on their site, from the moment a user signs in to the moment

she logs out.”

150

The proposed amendment to Section 230(c)(1) reads, in relevant part,

that

[n]o provider or user of an interactive computer service that takes

reasonable steps to prevent or address unlawful uses of its services

shall be treated as the publisher or speaker of any information

provided by another information content provider in any action

arising out of the publication of content provided by that

information content provider.

151

Under this conceptualization, adopting a reasonable standard of care

replaces the broad immunity currently enjoyed with an affirmative defense

against liability claims. As Citron notes, the reasonable standard would

examine whether the company employed reasonable content management

practices writ-large, rather than with respect to a particular use of the service.

As such, the reasonableness standard offers flexibility to evolve as the

existent technology does.

148

. Danielle Keats Citron & Benjamin Wittes, The Internet Will Not Break: Denying Bad

Samaritans Sec. 230 Immunity, 86 FORDHAM L. REV. 401, 417 (2017). Consider Former FCC

Commissioner Tom Wheeler’s proposition that “public interest algorithms” can be among Internet

media platform’s consumer protection toolkit. See Tom Wheeler, “Using ‘Public Interest

Algorithms’ to Tackle the Problems Created by Social Media Algorithms,” BROOKINGS:

TECHTANK, (Nov. 1, 2017), https://www.brookings.edu/blog/techtank/2017/11/01/using-public-

interest-algorithms-to-tackle-the-problems-created-by-social-media-algorithms/.

149

. See e.g., The Information Society Project, supra note 5 at 5.

150

. Olivier Sylvain, Discriminatory Designs on User Data, KNIGHT FIRST AMENDMENT

INSTITUTE (Apr. 1, 2018), https://knightcolumbia.org/content/discriminatory-designs-user-data.

151

. Citron, supra, note 147 at 419.

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105

Some have balked at reforming Section 230, warning that it would stifle

innovation and end the Internet as we know it.

152

Critics are also wont to

cite Congress’ desire to “encourage the unfettered and unregulated

development of free speech on the Internet.”

153

However, these arguments

are tenuous when considered in light of another regulatory framework

crafted precisely for the Internet age—the Digital Millennium Copyright Act

(“DMCA”).

154

Internet media companies are already “quite good at complying with at

least one government regulation.”

155

The DMCA has, as intended, mobilized

platforms to control individual users. Remarkably, “[t]he existence of the

legal scheme set forth in the DMCA demonstrates that the CDA’s policy of

conferring complete immunity on ISPs is not inevitable and, most

significantly, not currently understood as a First Amendment

requirement.”

156

In the estimation of communications professors Nina

Brown and Jonathan Peters, “[i]f there were any existing, workable model

for Congress to use to regulate fake news on social media, this would be

it.”

157

Like Section 230, the safe harbor provisions of the DMCA shield online

service providers from claims—in this instance copyright infringement

claims—arising from third-parties. Section 512 of the DMCA states that a

service provider must adopt and reasonably implement a policy as a

condition of eligibility for safe harbor protection.

158

Consider a recent lawsuit wherein an Internet media company invoked

Section 230 in light of the proposed reasonable steps approach. While the

matter did not involve fake news, the analysis provides a basis for

consideration. Section 230 doctrine insulated Grindr, an online dating

platform, in a lawsuit alleging that the platform’s negligent design of its

dating app enabled a campaign of harassment resulting from a user’s ability

to impersonate another.

159

Specifically, the amended complaint alleged that

the site, whose terms of service prohibit the use of its product to impersonate,

152

. See e.g., Andy Kessler, Kill Section 230, You Kill the Internet, WALL ST. J. (June 30,

2019 3:56 PM ET), https://www.wsj.com/articles/kill-section-230-you-kill-the-internet-11561

924578.

153

. Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003).

154

. Citron, supra note 12.

155

. BROWN, supra note 16, at 530 (discussing the notice and takedown provisions of the

Digital Millennium Copyright Act (DMCA)).

156

. Tushnet, supra note 41, at 1004. Professor Citron has noted that the critique that

Congress intended to encourage free speech on the Internet is divorced from the legislative history.

See CDA 230: Legislative History, Electronic Frontier Foundation, https://www.eff.org/

issues/cda230/legislative-history (last visited Apr. 29, 2020).

157

. Brown, supra note 16, at 531 note 72 (noting that DMCA § 512 has been used as a

suggested framework for legislation in the instances of regulating revenge pornography and

defamation).

158

. 17 U.S.C. § 512 (2018).

159

. Herrick v. Grindr, 306 F. Supp. 3d 579, 585 (S.D.N.Y. 2018).

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stalk, harass, or threaten, did nothing to respond to the plaintiff’s

complaints.

160

Moreover, the complaint alleged a number of design

decisions that, if reasonably undertaken, would have prevented or mitigated

the harm.

161

There, a court may be unlikely to grant a motion to dismiss on

Section 230 grounds under the proposed amendment, reasoning that the site

lacked a reasonable process to monitor its terms of service writ large rather

than because the site moderators failed to respond responsibly in the

Plaintiff’s case.

With respect to moderating fake news, an Internet media company

could avail itself of Section 230 safe harbors if it employed reasonable steps

to monitor, identify, and remove content that did not accord with its

community standards and terms of service. An argument could be made that

content moderation decisions including algorithm-enabled ranking may be

similar to a publisher’s editorial choices and may deserve First Amendment

protection. Thus, the validity of this regulation would involve discerning

whether the algorithms that the Internet media companies deploy are due

First Amendment rights as a type of speech.

Amending Section 230 will likely raise concerns about censorship.

Those concerns, however, may be overblown in light of online media

companies’ conduct in compliance with German regulation discussed above.

Moreover, the amendment’s effect of compelling platforms to adopt

reasonable standards in order to retain immunity would not come to bear on

any particular element of speech.

To the extent that the proposed amendment is resisted on the grounds

that it contravenes the legislative intent to leave the Internet unregulated, this

Article offers the proposition that “[t]he Internet is no longer a fragile new

means of communication that could easily be smothered in the cradle by

overzealous enforcement of laws and regulations applicable to brick-and-

mortar businesses. Rather, it has become a dominant-perhaps the

preeminent-means through which commerce is conducted.”

162

Lawrence Lessig reminds us that “[h]ow the code regulates . . . [is a]

question[] that any practice of justice must focus [on] in the age of

cyberspace.”

163

Platforms control what content appears on their services

through their design choices and speech policies.

164

Thus, it is in this

currently unregulated space that Congress is afforded perhaps the most

160

. Id.

161

. Id.

162

. Fair Hous. Council v. Roommate.com, LLC, 521 F.3d 1157, 1164 n.15 (9th Cir. 2008).

163

. Id.; see also Joel R. Reidenberg, Note, Lex Informatica: The Formulation of Information

Policy Rules Through Technology, 76 TEX. L. REV. 553, 554-56 (1998) (exploring how system

design choices provide sources of rulemaking and make a “useful extra-legal instrument that may

be used to achieve objectives that otherwise challenge conventional laws”).

164

. See Citron, supra note 12.

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107

appropriate opportunity to affect behavioral change while maintaining the

integrity of Section 230.

165

Conclusion

Fake news presents an ever-growing problem around the globe. The

First Amendment’s free speech protections and the Communications

Decency Act curtail any government regulation on speech. However, that

does not leave the area without regulation. The private sector needs

regulatory support to bolster its efforts to find fake news and identify it for

users. This can be achieved through an amendment to Section 230 that

conditions immunity on compliance with technical reasonable standards to

address fake news. The recommendation of the adoption of the “reasonable

standards” approach advanced herein is a modest extension of current

jurisprudence and would provide a balanced approach to regulating online

political speech, so as to not curb free expression or censor content.

165

. See LAWRENCE LESSIG, CODE: VERSION 2.0 61 (2006).

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