The legal position of social media intermediaries in addressing fake news

Social media allows fake news to travel more widely, cheaply and lethally than what was the position with traditional media and communication methods. Before 2016 the term “fake news” was not used much. United States president, Trump, however popularised the term. The issue of fake news results in a lot of controversy as questions arise as to exactly what constitutes fake news and whether it is serious enough to necessitate regulation and if regulated, the possible impact thereof on free speech. This discussion focuses on the legal position of the social media intermediary in addressing fake news for criminal law enforcement and national security purposes. The role of the intermediary in curbing fake news during election is but one of the issues addressed. The interference of a foreign government in another state’s political space as was the case with the historical 2016 US presidential election resulted in many countries considering ways to curtail fake news during elections. If appears that fake information necessitates some form of regulation, but the method of regulation is open to debate. Social networks acknowledge that they have a corporate responsibility to self-regulate content. They have taken steps to address fake news on their platforms but the question governments must answer is whether these steps are sufficient to address fake news. The European Commission (EC) is setting up a High Level Group (HLG) to advise on policy initiatives to counter fake news and the spread of disinformation online. Germany has indicated that self-regulation on the part of social media intermediaries has proven to be insufficient. In this regard Germany implemented the Network Enforcement Act (NetzDG) in 2017 that inter alia addresses the role of the social media intermediary pertaining to fake news. As the issue of fake news has a global effect, states may follow Germany and implement legislation in this regard. France indicated early in 2018 that it was deliberating the enactment of legislation to regulate fake news during elections. The discussion emphasises that countries are now at a crossroad pertaining to implementing legislation outlining the responsibilities of the intermediary to address this challenge.