Credits: Anna Smulders
By Anna Smulders
Introduction
The interaction between disinformation and human rights is receiving increased attention among scholars, law- and policy-makers as well as civil society organizations. Recently, the World Economic Forum’s Global Risk Report highlighted mis- and disinformation as the main short- term risk (#1) for the coming two years. The report stated that, ‘at the beginning of 2024 – year of elections around the globe – mis- and disinformation may radically disrupt [these] electoral processes’. It, however, also highlighted ‘a risk of repression and erosion of rights as authorities seek to crack down on the proliferation of false information – as well as risks arising from inaction’ (p. 18). As the end of 2024 approaches, it is timely to recall the main findings of a recent multi-disciplinary academic exploration of a selection of pressing issues around disinformation.
Anticipating a bumper year of elections worldwide, as well as the attendant risks of systemic manipulation and interference, Anna Smulders and Tarlach McGonagle (Netherlands Network for Human Rights Research (NNHRR Working Group on Human Rights in the Digital Age)) organized a one-day workshop ‘Disinformation and Human Rights in Context’ on 24 January 2024 at Leiden University’s Academy Building. With the financial support of the NNHRR, the Grotius Centre for International Legal Studies (Leiden University) and the University of Amsterdam’s Institute for Information Law (IViR), the workshop hosted a broad variety of speakers from the Netherlands and abroad. The programme provided interdisciplinary perspectives on some of the most challenging questions falling under the overarching theme of the workshop, through high-level panel discussions and a lively interaction with the audience.
The workshop, held in the Telders Auditorium at the Academy Building of Leiden University, was fittingly opened with a short historical reflection on the University’s motto – Libertatis Praesidium. As a ‘bastion of freedom’, this motto represents the University’s dedication to protecting the freedom of speech, human rights and academic freedom. The academic and scholarly liberty that this motto implies, however, also encapsulates a certain responsibility when human rights and free speech are under threat, as is the case in today’s world.
Disentangling Disinformation
Anna Smulders (Leiden University) opened the workshop with some preliminary reflections on the question: what is disinformation? A disentanglement of the concept and existing definitions revealed the complexities of capturing its meaning in a single definition. Nevertheless, the absence of a comprehensive understanding of disinformation leads to a dangerous deadlock in the regulatory debate. Anna argued for the use of set of qualifiers and characteristics to describe disinformation, which provides a flexible yet consistent framework to position disinformation in the legal debate. She raised a number of pressing conceptual issues: should the focus shift from the veracity of the information to the authenticity of information, in light of the emergence of generative AI? When emphasizing the malicious intent to cause harm – often referenced in relation to disinformation – whose intent are we referring to? And how can we come to a comprehensive and uniform interpretation of disinformation, as a cross-border phenomenon, while taking into consideration the different legal traditions around the globe? Anna’s conclusion was nevertheless unequivocal: although conceptual clarity is difficult to achieve and there are drawbacks to every approach, the risk of repression arising from inaction is too great to justify continuing with the current passive and reactive attitude.
Panel I The Media, Online Platforms and Emerging Technologies
The first panel, moderated by Leon Trapman (Radboud University) engaged with the changing media ecosystem; addressed the reconceptualization of media freedom in a digital age; and raised broader questions on the role and responsibility of online platforms. Drawing together two major threats of our time – climate change and disinformation – Fred Gertsen (Independent expert) started by introducing the notion of ‘hyperobjects.’ Arguing that data manipulation, disinformation and surveillance capitalism in the informational ecosystem lead to consumerism in the extreme, disinformation is not that different from climate change, which is currently mainly – yet unjustly – framed as a future threat. The problematic attitude of calling disinformation a future threat rather than a pressing reality we are facing today, was echoed by Deniz Wagner (Advisor to the OSCE Representative on Freedom of the Media). In answering the question how new technologies impact the media landscape and what challenges they cause, she explained how media freedom is currently at risk due to a lack of the rule of law in the digital space; a poor delineation of who or what qualifies as independent and quality media; and the increasing weaponization of freedom of expression. With a focus on the role of Artificial Intelligence (AI), she argued that the way forward should focus on how can platforms and emerging technologies can serve media freedom and fundamental rights, a consideration that should be at the forefront when it comes to designing (new forms of) AI. Urška Umek (Council of Europe (CoE), Information Society Department) subsequently elaborated on how the need for consistency and guiding principles is reflected in the work of the CoE on the governance of the media landscape in light of emerging technologies. An important guideline is that regulating disinformation should not supersede other types of measures. In addition, a much larger role should be attributed to support for quality journalism, improving access to reliable media and investing more in user empowerment online through digital literacy. Closing the first panel, Paddy Leerssen (University of Amsterdam), took the EU’s Digital Services Act (DSA) as legal point of departure, while also elaborating on the problematic use of the term ‘disinformation’. Especially though selective application of the notion in conflict situations, this influences the measures taken by large online platforms in ways that may turn out to be incompatible with the DSA. Paddy represented some critical yet nuanced reflections on the conflict between Israel and Hamas, and issued a word of caution about ‘the weaponization of disinformation’ in the public debate.
Panel II Gender, National Minorities and Disinformation
The second panel, moderated by Emma de Vries (Leiden University), tackled the complex topic of how disinformation disproportionately affects minority groups. A number of critical remarks were made with respect to the DSA and gendered disinformation. Drawing from practice and experience, Bojana Kostić (Human Rights and Technology Researcher) illustrated how online gender-based violence (OGBV) and gendered disinformation have evolved and how there is a worrying development from one-to-one to large scale coordinated manipulation resulting in online assaults and harassment of women and oppressed groups. In addition to expressing her views on how this influences media and gender equality policy broadly, she emphasized how – despite increased attention to the topic – the onus of responsibility in cases of OGBV still has not shifted to the actual perpetrators. The extent to which (new) frameworks, such as the DSA, can offer a solution, is debatable, as made explicit by Naomi Appelman (University of Amsterdam). Naomi highlighted multiple issues in the DSA from the perspective of gendered disinformation, including that there is too little attention for access to legal remedies, there are language barriers for minority groups and, because the DSA does not differentiate between different kinds of harm, the needs of victims of gendered disinformation are insufficiently represented. Focusing on the national minorities component of the panel, Tarlach McGonagle (University of Amsterdam/Leiden University) described disinformation as polysemantic, polymorphous, polyvalent and “polyproblematic.” Zooming in on how this translates into systemic issues relating to national minorities, he visualised how the connection between distorted, incomplete or dis-information and intolerance is a very real one. With the presentation of six tangible steps to disable disinformation and a number of strategies and measures, he presented a way forward in creating a favourable environment for participation in the public debate, whilst safeguarding freedom of expression and protecting national minorities.
Panel III Researching Disinformation
The third panel, moderated by Anna Smulders (Leiden University), highlighted different approaches and methods used in researching disinformation and which obstacles are commonly identified in this endeavour. Michael Klos (Leiden University) presented his perspective of disinformation as ‘platform norms’, touching upon the Strengthened Code of Practice on Disinformation and introducing the audience to disinformation policies of major online platforms. He raised the question on how, inter alia, the European Commission has influenced the normative dimension of these frameworks. Although the answer remains debated, there is a clear convergence of disinformation norms – even if they are accompanied by different subsequent remedies. Shifting from the ‘where’ to the ‘what’, Henning Lahmann (Leiden University) circled back to the question of how to identify disinformation’s harm, introducing the field of cognitive science as indispensable to understanding how the manipulation built into disinformation campaigns influences our behaviour, and thus determines its effectiveness. Although cognitive and social sciences have shown that the correction of facts in itself is often insufficient to change individuals’ convictions, this does not take away from the importance of fact-checking in the fight against disinformation. As lecturer and coordinator of Leiden University’s fact-checking initiative, Nieuwscheckers, Peter Burger shared his experience and perspectives on the position of fact-checkers in the disinformation ecosystem, where they are faced with a number of obstacles: a decrease in availability of data as a result of platforms shutting down access thereto; limits to available funding and ethical concerns over accepting funding from large online platforms; and an overall lack of tools, such as access to data. Focusing on future collaborations, new funding opportunities and an expansion of technical tools and resources to identify “fake news”, the third panel ended on an optimistic note.
Concluding Remarks
Despite the shared concerns on the proliferation of disinformation, the tone of the debate was constructive and mildly optimistic. Recent instruments, ranging from the DSA, to the Council of Europe Guidelines and fact-checking initiatives across the world are – despite their shortcomings – meaningful tools for countering disinformation in the eyes of the panellists. The growing awareness on the interconnectivity between disinformation and climate change, armed conflict, gender-based violence and violence against, inter alia, journalists and national minorities revealed the urgency of dedicating more research and allocating more resources to tackling this information disorder. To this end, the way forward should include more interdisciplinary and inter-institutional cooperation to conceptualise and contextualise disinformation, focus on capacity-building to further enable identification and to measure better measure its societal impact, and be characterised by an overall proactive attitude to anticipate new threats and emerging technologies, while – at all times – protecting fundamental freedoms.
Bio:
Anna Smulders has been a PhD Candidate with the Grotius Centre for International Legal Studies at Leiden University since September 2021, prior to which she was a research and teaching staff member at the Centre. She obtained her LL.B. and LL.M. in Public International Law at Leiden University, pursuing part of her undergraduate degree at the University of Texas in Austin, USA. Her current research on 'International Law and the Challenge of Disinformation' focusses on the applicability of norms of international law to modern-day disinformation as part of the broader regulatory debate. She has a particular interest in the intersection between technology and public international law, and is co-chair of the Working Group on Human Rights in the Digital Age of the Netherlands Network for Human Rights Research.