Is the EU Disinformation Review Compliant with EU Law? Complaint to the European Ombudsman About the EU Anti-Fake News Initiative

13 Pages Posted: 24 Apr 2018 Last revised: 30 May 2018

Alberto Alemanno

HEC Paris - Tax & Law

Justine Brogi

HEC Paris (Groupe HEC), Students

Maxime Fischer-Zernin

New York University (NYU), School of Law, Students

Paige Morrow

New York University (NYU) - NYU School of Law (Paris); University of Kent, Brussels

Date Written: March 28, 2018

Abstract

The EU’s approach to fake news, as epitomised by the European External Action (EEAS) Service East Stratcom Disinformation Review, violates the rights to freedom of expression and due process of those accused of distributing disinformation. The EU Disinformation Review is a publication of the European External Action Service (the European Union’s diplomatic service) to target fake news and online disinformation. Following our request for access to documents, EEAS conceded that the EU Disinformation Review uses an “ad hoc” methodology for conducting its fact-checks, which makes it an outlier in the international fact-checking community led by the International Fact-Checking Network (IFCN). Despite being a well-intentioned initiative to respond to the challenges posed by pro-Kremlin disinformation, the EU should ensure the respect of fundamental rights when engaging in fact-checking.

The EU Disinformation Review seeks to control the right to freedom of expression by labelling publishers as “disinforming outlets” and their content as “disinformation,” creating a chilling effect on the work of journalists that is central to democracy. The right to freedom of expression is expressed in Article 11.1 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) and Article 10 of the European Convention on Human Rights. The labelling of publishers as “disinformation outlets” is contrary to principle of the freedom of press established by the European Court of Human Rights: “[a] general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’ role of providing information on current events, opinion and ideas.”

In addition, the methodology used by EEAS in the EU Disinformation Review is “ad hoc,” which constitutes a violation of the fundamental right to good administration in Article 41 of the European Charter of Fundamental Rights. Specifically, the ad hoc design and operation of the EU Disinformation Review fails to ensure the review acts “impartially, fairly and within a reasonable time.”

First, publications are not provided with the right to be heard or proper notice. The EU Disinformation Review’s homepage offers an opportunity to contact the Task Force report a suspected mistake in a fact-check but the page is only available in English, in violation of the principle of multilingualism, and no notice if given to outlets accused of being “disinforming outlets” before or after fact-checks of their content are published.

Second, the EEAS does not fulfil its duty to motivate. EEAS is given a broad margin of discretion to identify disinformation, but fails to do so according to a consistent methodology. Therefore, EEAS cannot justify, on the basis of objective criteria, its choice of which content to review and how to determine its truth or falsehood.

To comply with EU law and ensure the respect of fundamental rights, the EEAS should develop and make public (1) a methodology for selecting partnerships and reviewing fact-checks in line with international standards and (2) a notice and response mechanism for journalists, publishers and citizens whose content is being reviewed. If EEAS is unable to comply with the above, the EU Disinformation Review should be shut down.

Keywords: Fake news, EU Law, European Ombudsman, Access to Information, Transparency

JEL Classification: K00, K10, K20, K30, K39

Suggested Citation

Alemanno, Alberto and Brogi, Justine and Fischer-Zernin, Maxime and Morrow, Paige, Is the EU Disinformation Review Compliant with EU Law? Complaint to the European Ombudsman About the EU Anti-Fake News Initiative (March 28, 2018). HEC Paris Research Paper No. LAW-2018-1273. Available at SSRN: https://ssrn.com/abstract=3151424 or http://dx.doi.org/10.2139/ssrn.3151424

Alberto Alemanno

HEC Paris - Tax & Law ( email )

1 rue de la Libération
Jouy-en-Josas Cedex, 78351
France

Justine Brogi

HEC Paris (Groupe HEC), Students ( email )

1 rue de la Liberation
Jouy-en-Josas Cedex
France

Maxime Fischer-Zernin

New York University (NYU), School of Law, Students ( email )

New York, NY
United States

Paige Morrow (Contact Author)

New York University (NYU) - NYU School of Law (Paris) ( email )

Paris
France

HOME PAGE: http://www.law.nyu.edu/global/globalopportunities/nyulawabroad/paris/pastaff

University of Kent, Brussels ( email )

Espace Rolin, Boulevard Louis Schmidt 2A
Brussels 1040
Belgium

HOME PAGE: http://https://www.kent.ac.uk/brussels/staff/profiles/external/morrow.html

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