Fake news censorship: the limits of freedom of expression

A couple of months ago the New York Post published an article on its website sharply criticising the American (then) presidential candidate Joe Biden. Private emails had supposedly been leaked to the press, suggesting that Biden had met an adviser to the Ukrainian company Burisma during his vice-presidency, while his son Hunter sat on its board. That sparked controversy, as Biden senior was working on policy for Ukraine at the time. The reliability of the information and the authenticity of the emails have been called into question, however. Facebook and Twitter went a long way in restricting the article.

Facebook restricted linking to it so that it could investigate the article’s accuracy in the meantime. Twitter went a step further and banned users from posting the article at all, since it contained private information from hacked emails, which is against its policies. The decision was not well received: Republicans felt silenced, and others questioned the power of social media giants to sweep certain information and opinions under the rug. This illustrates an important question in a digital society: where do we draw the line between free speech and limiting the spread of misinformation?

Twitter and Facebook do not have the answer either. Only a couple of days after imposing the restrictions, Twitter lifted them again because the article had already spread around the internet, meaning it could no longer be regarded as ‘private’. That decision was taken despite the fact that spreading hacked or personal information is still against its policies. Facebook, on the other hand, has imposed considerably more restrictions over the last few months: political advertisements were banned until the elections were over, and Holocaust denial, anti-vaccine adverts and certain conspiracy theories were removed from the platform, all of which had previously been allowed. Something similar closer to home: Maurice de Hond was recently removed from LinkedIn because of his criticism of the current coronavirus policy, which, according to him, ‘had no basis whatsoever’.

The free speech dilemma persists. On the one hand, freedom of expression is an essential right, and no one should have to ask their government or a company for permission to voice criticism, satire, an opinion or a story. The European Court of Human Rights has held that pluralism, tolerance and broadmindedness are essential to a democratic society (Handyside v UK).

On the other hand, the spread of misinformation, or ‘fake news’, can have dangerous and polarising consequences. Theories that COVID-19 does not exist, that vaccines cause autism in children or that a political party is conspiring against your right to exist have a palpable effect on society and on vulnerable individuals alike. If hate speech and public discrimination can be criminal offences (articles 137c and 137d of the Dutch Criminal Code), it would not be out of place to address group manipulation as well.

Among the staggering amount of information circulating these days, facts are often accompanied by falsehoods, which makes safeguarding the truth an urgent matter. But are social media companies the right parties to take that on? Their record on privacy and data is not exactly spotless.

The flow of information will keep increasing, and with it the amount of fake news, conspiracy theories and propaganda. Freedom of expression and access to information remain essential components of our democracy, but the ability to distinguish fact from fiction is just as important. Whether it should be social media companies that censor ‘fake news’ is debatable, but action is certainly needed. Fact-checking by Facebook and Twitter is at least a first step.