Chapter 4 looks at the legal framework for countering disinformation and propaganda. The first section analyses the legal frameworks of Malta, Spain and Romania and examines how freedom of expression has been affected by disinformation and how the aforementioned states address disinformation through their legal frameworks. After a general overview of the aforementioned legal frameworks, the second section examines the role of data protection in combating disinformation. It identifies different dimensions of data protection that may be relevant for preventing disinformation, such as profiling, automated decision-making, the principles of data protection by design/data protection by default and sensitive personal data. The third section looks at the relevant national and European case law, where available, to see how the courts interpret or in some cases fill in the gaps in the area of fake news and disinformation. Finally, the last section of this chapter examines some of the most commonly used technological tools to detect and prevent disinformation and analyses their potential and limitations.
2.3 Engaging citizenship through digital technologies.
The first section of the section is dedicated to a short introduction into the right to freedom of expression, and how this right is protected in national and international legislation. The section then continues with an analysis of how freedom of expression is connected to the spread of disinformation, which is focused on three main case studies: Malta, Spain and Romania. The objective is to examine recent legislative changes aimed at addressing disinformation and whether these changes are in compliance with human rights standards. To illustrate how these legislative changes work in practice, the deliverable focuses on the case of the COVID-19 pandemic and the disinformation surrounding the measures aimed to control the pandemic, which was a common challenge for all three countries examined. Lastly, this section will look into new legal developments, related to the role of intermediaries in spreading disinformation. The objective of this section is to provide an overview of relevant legislation in relation to disinformation. To do so the section focuses on three different legal systems: Malta, Spain and Romania to showcase both common approaches but also national differences in tackling disinformation. Moreover, the section employs the example of disinformation related to the COVID-19 pandemic measures to illustrate how legislative provisions have been applied in practice.
Main research questions addressed
● What is the connection between freedom of expression and the fight against disinformation?
● How do the legal frameworks of Malta, Spain and Romania protect freedom of expression and address disinformation?
● Do countries recognize disinformation as a hybrid threat and have they addressed the COVID-19 Infodemic?
● What is the purpose of the Digital Services Act?
Each state must safeguard freedom of expression while at the same time ensuring that the dissemination of fake news is accurately tackled. Article 11 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) defines freedom of expression and information as: “[the] right [that] includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers” (Charter of Fundamental Rights of the European Union, Article 11). Similarly, Article 10 of the European Convention on Human Rights states:
1. Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (Charter of Fundamental Rights of the European Union, Article 10).
The right to freedom of expression is universal. Therefore, states must protect and ensure that their legal systems provide adequate and effective safeguards for protecting freedom of expression. These safeguards are usually defined in the constitution, given that the protection of freedom of expression is essential for the democratic political process and development. Freedom of expression and information is addressed in constitutions, either in combination with other fundamental rights and freedoms or as a separate fundamental human right. The following paragraphs will show how the constitutions of Malta, Spain and Romania, the countries analysed in this chapter, follow the standards set by the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights.
The Maltese Constitution does not have a separate freedom of expression clause. Freedom of expression is protected under a clause referring to the fundamental rights and freedoms of the individual. Article 32 of the Constitution of Malta reads as follows:
Whereas every person in Malta is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex, sexual orientation or gender identity, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely
(a) life, liberty, security of the person, the enjoyment of property and the protection of the law;
(b) freedom of conscience, of expression and of peaceful assembly and association; and
(c) respect for his private and family life,
The subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest (Constitution of Malta, Article 32).
Spain sets protection safeguards for the freedom of expression in Article 20 of its Constitution. It links the right to freely express and share thoughts with the right to literary, artistic, scientific and technical production; the right to academic freedom and; the right to freely communicate and receive truthful information. The following safeguards apply to all rights mentioned:
2. The exercise of these rights may not be restricted by any form of prior censorship.
3. The law shall regulate the organization and parliamentary control of the mass communication means under the control of the State or any public agency and shall guarantee access to such means by significant social and political groups, respecting the pluralism of society and of the various languages of Spain.
4. These freedoms are limited by respect for the rights recognized in this Part, by the legal provisions implementing it, and especially by the right to honour, to privacy, to the own image and to the protection of youth and childhood.
5. The seizure of publications, recordings and other means of information may only be carried out by means of a court order (Spanish Constitution, Article 20).
In contrast to the Maltese and Spanish examples, Article 30 of the Romanian Constitution separately addresses freedom of expression, defining safeguards and limitations to this right:
(1) Freedom of expression of thoughts, opinions or beliefs and freedom of creations of any kind, through live speech, writing, images, sounds or other means of public communication, is inviolable.
(2) Censorship of any kind is prohibited.
(3) Freedom of the press also implies the freedom to establish publications.
(4) No publication may be suppressed
(5) The law may impose on mass media the obligation to make public the source of funding.
(6) Freedom of expression cannot prejudice the dignity, honour, private life of the person, nor the right to one's own image.
(7) Defamation of the country and the nation, incitement to war of aggression, national, racial, class or religious hatred, incitement to discrimination, territorial separatism or public violence, as well as obscene manifestations contrary to good morals, are prohibited by law.
(8) The civil liability for the information or for the creation brought to public knowledge rests with the editor or producer, the author, the organizer of the artistic manifestation, the owner of the means of multiplication, of the radio or television station, in accordance with the law. Crimes that can be conducted through the press will be established by law (Constitution of Romania, Article 30).
Freedom of expression underpins other human rights; thus, it does not come as a surprise that some states in their constitutions connect it with other fundamental rights. As freedom of expression is a component of other fundamental rights, clear safeguards must be set, as well as restrictions or penalties. According to the standards set by the European Convention on Human Rights, any restrictions to freedom of expression must be prescribed by law and must be necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (Bychawska-Siniarska, 2017). Just as there are differences in introducing the freedom of expression in their constitutions, states can also limit freedom of expression differently:
An example of this approach is the Romanian Constitution which clearly states that “freedom of expression cannot prejudice the dignity, honour, private life of the person, nor the right to one's own image” (Constitution of Romania, Article 30).
Article 20 of the Spanish Constitution sets restrictions to the freedom of expression, to protect “the right to honour, to privacy, to the own image and the protection of youth and childhood (Spanish Constitution, Article 20).”
Article 41 of the Maltese Constitution introduces the possibility of limiting freedom of expression by consent or as part of the so-called parental discipline:
Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence (Constitution of Malta, Article 41).
States have the responsibility to enact laws and regulations that need to create an “enabling” environment for individuals to exercise their right to freedom of expression. The legislative framework needs to be carefully assessed, so as not to hinder the exercise of this right. Special focus must be put on laws that could be deterring, such as those that define legal liability. Whereas these can help in tackling the issue of disinformation, they can foster censorship, self-censorship, and criminal, financial and administrative sanctions. In order to protect freedom of expression, some countries, like Spain, opted for full prohibition of censorship. Article 20 of the Spanish Constitution stipulates that the freedom of expression may not be restricted “by any form of censorship” (Spanish Constitution, Article 20). Although full prohibition of censorship might seem as a way for the state to guarantee no limitations will be set to individual freedom of expression or to suppress the opposing views, such an approach may have its shortcomings. By avoiding censorship, countries with the same approach fail to address the spread of illegal content which can increase the need for more pro-active actions (European Commission, 2017). Incitement to terrorism, xenophobic and racist speech that publicly incite hatred and violence, as well as child sexual abuse materials should be adequately flagged and removed. In comparison with Spain, Romania prohibits censorship with several exceptions. While article 30 of the Romanian Constitution states that “any censorship shall be prohibited” paragraph 7 of the same article stipulates (Constitution of Romania, Article 30):
Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law (Constitution of Romania, Article 30).
Article 30 of the Romanian Constitution serves as an example of a legal clause that successfully integrated both the need to protect freedom of expression by limiting censorship, while at the same time acknowledging the importance of addressing illegal content. In comparison with two previous examples, the Maltese Constitution does not have any references to censorship.
Whatever approach states opt to take on when it comes to limiting censorship, legal clauses referring to censorship must be written in a way that does not restrict freedom of expression. If there are some exceptions, these exceptions must be precisely defined, so there is control over the scope of restrictions exercised by public authorities. Among the different forms of interference, censorship before publishing can be the most dangerous, as it stops the transmission of information and ideas to those who want to receive them.
Criminal convictions and sentences are one of the most dangerous post-expression interferences with the freedom of expression. Similarly, in the case of censorship, legal liability clauses need to be written in a way where the scope of the restriction is clear, minimising legal uncertainty. An example of the legal liability clause is Article 30, paragraph 8 of the Romanian Constitution which reiterates:
Civil liability for any information or creation made public falls upon the publisher or producer, the author, the producer of the artistic performance, the owner of the copying facilities, radio or television station, under the terms laid down by law. Indictable offences of the press shall be established by law (Constitution of Romania, Article 30).
States need to safeguard freedom of expression while, at the same time, ensuring that the dissemination of fake news is accurately tackled. To deter people/entities from sharing disinformation, some states have introduced legal provisions that ensure the right of an individual to receive truthful information. These provisions, apart from ensuring individuals’ rights, also prescribe responsibilities to media who produce and share disinformation. Article 31, of the Romanian Constitution, serves as an example of such a legal provision:
(1) The right of the person to have access to any information of public interest cannot be restricted.
(2) In their area of responsibility, public authorities are obliged to ensure the correct information of citizens on public affairs and issues of personal interest.
(3) The right to information cannot go against measures to protect young people or national security.
(4) The mass media, public and private, are mandated to ensure correct information of public opinion.
(5) Public radio and television services are autonomous. They must guarantee the right of important social and political groups to express their views. The organization of these services and the parliamentary control over their activity will be regulated by organic law (Constitution of Romania, Article 31).
Lack of precision in provisions which assign responsibility for spreading disinformation raises a question – what are the entities included under the “public and private media”? Who is to be held accountable? These questions are important in the context of both pre and post-expression interference. As a valuable starting point, both in the context of legal liability and, more so, of protection standards, the Council of the European Union, advises that “efforts to protect journalists should not be limited to those formally recognised as such, but should also cover support staff and others, such as ''citizen journalists'', bloggers, social media activists and human rights defenders, who use new media to reach a mass audience” (Council of the European Union, 2014). The recommendations made by the Council of the European Union are indicative of the changing times in terms of media protection and the acknowledgement that different and, perhaps, stronger safeguards need to be put into place at national and European levels. In an increasingly volatile and polarised world, often combined with a tendency of both democracies and authoritarian regimes to resort to coercion, it is important to protect journalists, “citizen journalists”, human rights defenders. Although the Guidelines issued by the Council of the European Union are not legally binding, by following them, the EU Member States are showing political commitment to protect and advance the work of journalists, human rights defenders and citizens, allowing them to peacefully stand up against any unfairness.
The European Commission has emphasized that the “primary obligation of state actors in relation to freedom of expression and media freedom is to refrain from interference and censorship and to ensure a favourable environment for inclusive and pluralistic debate” (European Commission, 2018). However, with the increasing use of disinformation to undermine democracies, the European Commission has changed its approach, advocating for national authorities to implement a variety of measures that would adequately respond to the new challenges posed by disinformation, while, at the same time, protecting freedom of expression. The Cambridge Analytica scandal showed how disinformation can be used to target voters with individually-tailored content, which is adjusted in real-time to reflect the debate that develops around critical electoral issues. Disinformation was not only used to undermine elements of good democracy, but it also destroyed trust in mainstream media, allowing alternative news to flourish.
As a first step to addressing the issue of disinformation, the European Commission had to decide what falls under this term. The European Commission defined disinformation as “verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and may cause public harm. Public harm includes threats to democratic processes as well as to public goods such as Union citizens' health, environment or security” (European Commission, 2018b).
Although an EU-wide unified response to the issue of disinformation was expected, EU Member States opted for an individual approach, given that disinformation is harmful, but still not illegal per se. EU legislation currently differentiates illegal content from harmful content. Incitement to terrorism, xenophobic and racist speech that publicly incites hatred and violence, as well as child sexual abuse materials are illegal in the EU (European Commission, 2017). Harmful content refers to information that does not strictly fall under legal prohibitions but that might nevertheless have harmful effects, inter alia, disinformation. Whereas with illegal content the EU law is clear, in the case of harmful but legal content, the situation becomes more complicated as it consists of information that may be inadequate, but whose legality varies significantly across Member States.
Consequently, some Member States decided to address harmful content, by introducing in their Criminal Code legal provisions that define the act of producing and sharing disinformation and prescribe punitive measures. Malta serves as an example of the EU Member State, which has legal provisions that address the issue of producing and sharing disinformation. Article 82 of Malta’s Criminal Code stipulates the following:
Whosoever shall maliciously spread false news which is likely to alarm public opinion or disturb public good order or the public peace or to create a commotion among the public or among certain classes of the public, shall, on conviction, be liable to imprisonment for a term from one to three months:
Provided that if any disturbance ensues in consequence of the offence, or if the offence has contributed to the occurrence of any disturbance, the offender shall be liable to imprisonment for a term of not less than one month but not exceeding six months and to a fine(multa) not exceeding one thousand euro (€1,000) or both such fine and imprisonment (Malta’s Criminal Code, Article 82).
Article 82 of Malta’s Criminal Code shows significant similarities with the European Commission’s definition of disinformation. It highlights false information that is shared with malicious intentions, intending to deceive and harm the public. However, in comparison with the Commission’s definition, no financial gain is needed for the malicious news to be labelled as false or disinformation.
Alongside the example of Malta, there are other Member States who have also introduced into their Criminal Codes provisions which address the intentional spread of disinformation and these are France, Croatia, Greece, Slovakia, Czech Republic, and Cyprus (Fathaigh, R., et al., 2021). In addition to those, others have decided to take a harder stance in addressing the issue of disinformation. For example, Romania followed the same approach as the before-mentioned countries, with one difference – it interlinked the spread of disinformation with the threats to national security. Precisely, Article 404, of the Romanian Criminal Code condemns the knowing spread of false information if it threatens national security, and establishes a sentence of between 1 and 5 years (Romanian Penal Code, Article 404). National security is defined by the Law on National Security (51/1991) as:
… a state of social, economic and political legality, equilibrium and stability that is necessary to the existence and development of the Romanian national state - a sovereign, unitary, independent and indivisible state, to the maintenance of legal order as well as of the climate for the unhampered exercise of the fundamental rights, freedoms and duties of the citizens, in accordance with the democratic principles and rules provided by the Constitution (Romanian Law on National Security, Article 1).
Since the current definition of national security does not precisely define which acts might pose a threat, there is a question of where the authorities draw the line and how they determine whether the spreading of (specific) false information is a threat to national security. The lack of a clear distinction between what falls under the scope of this legal provision raises legal uncertainty. Enjoyment of the right to freedom of expression may be limited, however, such limitations must be precisely defined, otherwise, they constitute arbitrary and discriminatory influence.
Similarly to the Romanian example, Spain also approached disinformation as a possible threat to national security. In 2019, Spain introduced disinformation in their National Cybersecurity Strategy, arguing that “malicious use of personal data and disinformation campaigns have high potential to destabilise society” (Spanish Government, 2019). As a result of recognising disinformation as a cyber threat, the CCN-Cert, an organisation of Spanish intelligence has become involved in the fight against disinformation, which is understood as part of cyber defence in the broadest sense. The CCN-Cert operates a national security centre whose aim is to achieve safer and more reliable cyberspace, preserving classified and sensitive information. According to the Regulation and Law on the Public Sector Legal Regime Currently, CCN-Cert is responsible for the management of cyber-incidents affecting any public body or company. Currently, Spanish Criminal Code doesn’t have any punitive measures prescribed for spreading disinformation (Centro Criptologico Nacional, 2019). However, just a year later after integrating disinformation into the National Cybersecurity Strategy and nominating CCN-Cert to monitor the issues of disinformation, Spain introduced their Procedure of Action against Disinformation that was approved by the Department of Homeland Security (DSN). The Procedure of Action against Disinformation contains four levels of action:
Level I. 1. Monitorization and surveillance: detection, early warning, notification, and analysis; 2. Participation in the European Union´s Rapid Alert System (RAS) and activation of protocols; 3. Research the possible origin, the purpose and tracking of its activity; 4. Deciding if the event is elevated to a higher body or if it is finished.
Level II. 1. Call, tracking and evaluation of the alert by the Permanent Commission against disinformation; 2. Analysis of the situation and support for the definition of proposals for action; 3. Activating, where appropriate, a Coordination Cell against Disinformation activated ad hoc by the Director of the Department of Homeland Security; 4. Decision on its elevation or the carrying out of a public communication campaign led by the State Secretariat for Communication depending on the nature of the disinformation campaign.
Level III. 1. Information at the political-strategic level by the Secretary of State for Communication; 2. Monitoring and evaluation of the alert by the Situation Committee or Public Communication agreed according to guidelines of the Situation Committee.
Level IV. 1. Coordination of the response at the political level by the National Security Council in case of public attribution of a disinformation campaign to a third State (Spanish Government,2020).
The relationship between disinformation and human rights is double-edged. Disinformation infringes a range of core rights. These include the freedom of thought; the right to privacy; the right to participation. Disinformation also weakens democracies, it has the potential to interfere with elections, and can feed digital violence. However, counter-disinformation initiatives also carry risks for human rights and democracy. In some states measures against disinformation have constricted human rights. That is why it is important to find appropriate ways for legislative and executive bodies to regulate the spread of disinformation, while at the same time being attentive to ways these may impact human rights
In recent years, the transmission of disinformation has increased dramatically across the world. Recently disinformation has mostly been mentioned in the context of the exposure of Russian interference in the American elections and the war in Ukraine, both cases illustrating how concerted disinformation campaigns can foster democratic regression and promote authoritarian regimes.
The COVID-19 pandemic has also led to a spike in disinformation, through the online dissemination of pseudoscience, and conspiracy theories, thereby, causing distrust in public institutions and risking people’s lives (e.g. through their refusal to get vaccinated and/or follow other health measures). The following subchapters will provide examples of how the three countries under analysis, namely Malta, Romania and Spain have responded to the newest challenges linked to disinformation.
a. DISINFORMATION AS A HYBRID THREAT
In light of Russian interference in the American elections, and the war in Ukraine, the European Commission issued a Joint Framework on countering hybrid threats, where it reiterated its position that “while definitions of hybrid threats vary and need to remain flexible to respond to their evolving nature, the concept aims to capture the mixture of coercive and subversive activity, conventional and unconventional methods… Massive disinformation campaigns, using social media to control the political narrative or to radicalise, recruit and direct proxy actors can be vehicles for hybrid threats” (European Commission, 2016).
Keeping in mind the central role of disinformation in the destabilization of democratic countries, some EU member states have decided to integrate hybrid threats in their defence strategies, while others decided to follow the Commission’s Framework, while gradually integrating the Commission’s recommendations in their policy framework.
The COVID-19 crisis showed the extent of the threat disinformation poses to our society. In the words of the European Commission “the infodemic - the rapid spread of false, inaccurate or misleading information about the pandemic – has posed substantial risks to personal health, public health systems, effective crisis management, the economy and social cohesion” (European Commission, 2021, 1). In light of the new circumstances, the Commission published its Guidance on Strengthening the Code of Practice on Disinformation (European Commission, 2021). As per Commission’s view, relevant stakeholders (social media and other digital platforms) must “step up their measures to address gaps and shortcomings in the Code and create a more transparent, safe and trustworthy online environment” (European Commission, 2021, 2) (see also Chapter 6 for more information on this document).
While some countries decided to rely on informative campaigns and publicly assign the responsibility to individuals to be mindful when sharing content related to COVID-19, others resorted to more punitive measures.
Malta, for example, relied on a more holistic approach when addressing the infodemic. In a press release issued by the Government, the responsibility for stopping disinformation was allocated to individuals:
Undoubtedly, the spread of disinformation around COVID-19 has led to potential harmful consequences that could contribute to potential destabilisation, if not cripple, whole societies. Understanding threats, developing responses and sharing insights, are now key to finding comprehensive approaches to tackle hybrid threats and disinformation.
False information, mistrust, and panic will undoubtedly keep increasing, unless proper counter measures are enacted. The responsibility is on us citizens, to counter the further proliferation of disinformation, by simply thinking before clicking and reflecting on possible consequences before sharing information on today’s social media platforms (Faruggia, 2020).
Spain took a similar approach to the one employed by Malta. The Spanish National Police issued a guide to prevent citizens from being manipulated by disinformation, by compiling main narratives that are built on disinformation and fake news (Torres et al., 2021).
By comparison to Malta and Spain, Romania took a harder and more systematic stand when tackling the infodemic. Romania declared a state of emergency on the 16th of March 2020, which was in force until the 15th of May of the same year. Between May 2020 and March 2022, Romania maintained a ”state of alert”, which included less severe restrictions. The legislation that expressly allowed authorities to forbid content online and to eliminate websites, namely Article 54 of the Decree 195, 16 of March 2020 was in force during the two months of the state of emergency and was included in the decree that introduced the state of emergency. The article states that:
(1) Public institutions and authorities, as well as private operators contribute to the public information campaign regarding the measures adopted and the activities carried out at the national level.
(2) In the event of the propagation of false information in the mass media and in the online environment regarding the evolution of COVID-19 and the protection and prevention measures, institutions and public authorities take the necessary measures to inform the population correctly and objectively in this context.
(3) Hosting service providers and content providers are obliged to, on the reasoned decision of the National Authority for Administration and Regulation in Communications, to immediately interrupt, after notifying the users, the transmission through an electronic communications network or the storage of the content, by eliminating it at the source, if the respective content promotes false news regarding the evolution of COVID-19 and to protection and prevention measures.
(4) In the situation where the elimination at the level of the source of the content provided for in par. (3) is not feasible, the providers of electronic communications networks intended for the public are mandated, upon the reasoned decision of the National Authority for Administration and Regulation in Communications, to immediately block access to said content and to inform the users.
(5) Upon the reasoned decision of the National Authority for Administration and Regulation in Communications, providers of electronic communications networks intended for the public have the obligation to immediately block the access of users in Romania to content that promotes fake news regarding the evolution of COVID-19 and to protection and prevention measures and it is transmitted in an electronic communications network by the persons from para. (3) which is not under the jurisdiction of national law (Romanian Presidential Administration, 2020).
Based on the decree, the National Authority for Administration and Regulation in Communications was able to close down 15 websites accused of spreading COVID 19-related disinformation, through individual decisions. The decisions lapsed after the lifting of the state of emergency in May 2020 (ANCOM, 2020).
Digital technologies, business models and services have changed at an unprecedented pace. Having experienced the impact of digital technologies used as an intermediary for sharing disinformation to destabilize democracies and political systems, EU Member States are increasingly introducing, or are considering introducing, national laws that strive to regulate digital space. Russian intervention in the American elections, the infodemic and the current war in Ukraine, once again showed why it is important to build a common legal framework that would adequately and timely respond to new challenges.
With its new Digital Services Act (2022), the European Union took an important step to ensure a safer online environment. The DSA protects the digital space against the spread of illegal content, disinformation and ensures the protection of users’ fundamental rights. The DSA defines clear responsibilities and accountability for providers of intermediary services, such as social media, online marketplaces, very large online platforms (VLOPs) and very large online search engines (VLOSEs). The rules are designed asymmetrically, which means that larger intermediary services with significant societal impact (VLOPs and VLOSEs) are subject to stricter rules. According to the Act:
When recipients of the service are presented with advertisements based on targeting techniques optimised to match their interests and potentially appeal to their vulnerabilities, this can have particularly serious negative effects. In certain cases, manipulative techniques can negatively impact entire groups and amplify societal harms, for example by contributing to disinformation campaigns or by discriminating against certain groups. Online platforms are particularly sensitive environments for such practices and they present a higher societal risk (Digital Services Act, paragraph 69).
Under the DSA, platforms will not only have to be more transparent but will also be held accountable for their role in disseminating illegal and harmful content. Specifically:
Wide-ranging transparency obligations regarding the steps taken by platforms to combat illegal and fake information.
► Measures to counter the sale of illegal goods/services.
► Transparency obligations concerning online advertisements.
► Updated liability regime for online intermediaries
► A new crisis response mechanism (in the context of the ongoing situation in Ukraine and the potential impact of the manipulation of online information) which will facilitate the analysis of the impact of the activities of VLOPs/VLOSEs on the crisis and rapidly decide on proportionate and effective measures to implement to protect fundamental rights.
► Platforms accessible to minors must implement special protection measures to ensure their online safety and will be prohibited from using targeted advertising based on the use of minors’ personal data.
► Restrictions on targeted advertising based on profiling using special categories of personal data such as sexual orientation or religious beliefs and the use of “dark patterns” on the interface of online platforms.
VLOPs/VLOSEs must also:
► Analyse the systemic risks their platforms create and implement effective content moderation mechanisms to address them.
► Provide transparency on the key parameters of decision-making algorithms used to provide content and offer users a system for recommending content which is not based on profiling.
•► here are heavy fines for non-compliance of up to 6% of annual global income/turnover (Trynor, 2022).
DSA takes an expansive view of digital regulatory policy by proposing to introduce legally binding tools, especially with regard to the accountability and transparency of digital platforms. These measures seek to enhance the EU’s democratic resilience and regulatory toolbox. The DSA rules entered into force on the 16th of November. If successfully implemented across the EU, they will present a ground-breaking horizontal regulation that will mark the beginning of a new relationship between online platforms, users and regulators in the European Union and beyond.
A fully comprehensive approach must be taken to counter disinformation effectively. A series of instruments must be developed both internationally (EU-wide) and nationally. While developing external actions against disinformation stronger human rights and democracy considerations must be made. Response to disinformation is needed on several levels:
Laws and Regulations
► All restrictions to freedom of expression must be clear and must respect the principle of legal certainty.
► Legislation restricting the right to freedom of expression must be applied by the body which is independent of political or private influence.
► Remedy measures against the abusive application of legislation which limits freedom of expression must be available.
► States must take care to ensure that anti-terrorism laws, treason laws or similar provisions relating to national security must be applied in a manner that agrees with their obligations under international human rights law.
Media
► Journalists, including freelance journalists, media actors and individuals must be committed to producing quality journalism, and have access to life-long training opportunities to update their skills and knowledge, specifically concerning their duties and responsibilities in the digital environment.
► Media must develop effective self-regulatory mechanisms to deal with disinformation and harmful or illegal content. The Decision-making process must be transparent.
Civil Society
► Efforts should be made towards supporting civil society to develop digital literary and tech skills. It is important to build a civil society which understands human rights and the use of technology in the context of wider issues connected with democracy and human rights.
► By supporting civil society which will directly engage with communities impacted by disinformation, society will become more resilient to disinformation.
1. ANCOM, Autoritatea Naţională pentru Administrare şi Reglementare în Comunicaţii. (2020). Decizii ANCOM pentru implementarea prevederilor Decretului nr. 195 din 16 martie 2020 și Decretului nr. 240 din 14 aprilie 2020. ANCOM. https://www.ancom.ro/decizii-decret-stare-de-urgenta_6253
2. BOLETÍN OFICIAL DEL ESTADO (2020). Procedimiento de actuación contra la desinformación. https://boe.es/boe/dias/2020/11/05/pdfs/BOE-A-2020-13663.pdf
3. Bychawska-Siniarska, D. (2017). Protecting the right to freedom of expression under the European Convention on Human Rights. Council of Europe. https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814
4. Centro Criptologico Nacional. (2019). Desinformación en el ciberespacio. CCN-CERT. https://www.dsn.gob.es/sites/dsn/files/CCNCERT_BP_13_Desinformaci%C3%B3n%20en%20el%20Ciberespacio.pdf
5. Charter of Fundamental Rights of the European Union (2000/C 364/01).
6. Constitution of Malta. https://legislation.mt/eli/const/eng/pdf
7. Constitution of Romania. http://www.cdep.ro/pls/dic/site2015.page?den=act2_1&par1=2#t2c2s0sba30
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9. European Commission (2017). Communication on Tackling Illegal Content Online - Towards an enhanced responsibility of online platforms. European Commission. https://digital-strategy.ec.europa.eu/en/library/communication-tackling-illegal-content-online-towards-enhanced-responsibility-online-platforms
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