Content Traffic Regulation: A Democratic Framework for Addressing Misinformation
Jurimetrics, Fall 2022 issue (Volume 63, Issue No. 1) Forthcoming
49 Pages Posted: 15 Sep 2022
Date Written: August 29, 2022
This article offers a roadmap for shaping a new generation of structural regulative interventions that aim to mitigate the proliferation of online misinformation, without suppressing users' freedom of speech. The suggested democratic response to misinformation does not focus on users' speech, but rather on toxic content distribution patterns in social media platforms, which tend to increase the popularity and penetration of misinformation.
The growing awareness of the negative impact of misinformation has spawned an exponential rise in legislative initiatives around the globe. However, despite the growing consensus that something is broken in the online information ecosystem, many of those initiatives are a kind of double-edged sword: They consider interventions that in order to reduce misinformation, also infringe upon freedom of speech. The contemporary content-based mode of legislation adopts a popular framing of the issue, positing an inherent trade-off between users’ freedom of speech and the aspiration for a safer online environment. This article demonstrates that this binary framing obscures a very significant part of the story: The popularity and penetration of misinformation stem not only from content posted by users, but also from the ways in which platforms promote, distribute and incentivize content. Since content distribution mechanisms play a major role in the impact of misinformation, these distribution channels must be regulated in order to address the problem. The socio-technical characteristics and toxic implications of some of the content distribution mechanisms in social media are being intensively explored in recent years. What is still missing are translations of these scientific insights into comprehensive legal structures, policies, and norms. This article contributes to this effort by formulating a structural legal response to misinformation, aims to adjust the information ecosystem to democratic criteria, by ensuring fair and just content flow and a functioning and resilient public discourse.
Keywords: Platform governance, misinformation, fake news, bots, social media, freedom of expression, public discourse
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