Eduardo Paiva (Master in Law and Informatics - UMinho)
The healthy unfolding of democratic electoral processes – and of democratic life in general – has been threatened by the dissemination of disinformation (defined as “false or misleading content that is spread with an intention to deceive or secure economic or political gain, and which may cause public harm”) by agents who do not uphold the same principles.[1] Under these circumstances, a climate of manipulation and deceit is fostered, which is extremely and particularly malign for crucial moments of political decision,[2] as attempts are made to strip them of their inherent relevance and validity, constituting one of the most dangerous forces deteriorating our democratic foundations.[3]
In this sense, the role of major digital platforms, as holders of vast power to control and influence communication and information channels on a global scale, is chronic and central in this issue. Taking this into account, they should be compelled to engage in self-criticism towards a certain openness in applying changes to the operational models of their businesses.[4] The enormous capacity of these technological platforms in amplifying and micro-targeting content makes them extremely attractive for the precise propagation of information on a large scale, thus making them systematically targeted for hybrid activities in the field of disinformation. Amidst this web of opaque information, it is more important than ever to know which profiles and posts are genuinely concerned with conveying the reality of facts in an impartial and well-founded manner.
As the saying goes, with great power comes great responsibility. For this reason, digital platforms should take a strong and unquestionable stance against the abuse and manipulation of their services. They should invest in developing a safe and trustworthy online environment, especially during times when such values deserve particular emphasis, such as during elections or referendums, or in times of crisis such as wars and pandemics. From this social mission arises a responsibility from which major platforms cannot evade, corresponding to their role in building a service that connects and informs the world –dutifully, justly, and impartially – about the major issues that arise at every moment.[5]
Against this background, the legislative policies outlined in the Digital Services Act (DSA) are precisely linked to ensuring improvements in the functioning of the internal market and the creation of a more solid, predictable, and reliable online environment where the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union (CFREU), such as freedom of expression and information and the freedom and pluralism of the media, are fully safeguarded.[6]
The DSA envisages in its legal text a model “that involves and holds various actors accountable”,[7] which also relies on the development of Codes of Conduct, (such as the crucial 2022 Strengthened Code of Practice on Disinformation), supporting a robust response to the main risks posed by the activity of Very Large Online Platforms and Search Engines (VLOP/SE’s) in the dissemination of disinformation.[8]
The DSA categorises, for this purpose, systemic risks, i.e., dangers resulting from the use of key tools related to the operation of the service provided by VLOP/SE’s.[9] The spread of disinformation logically falls within this concept of “systemic risks”.[10] Within this framework, the negative effects on some of the foundations of free societies are mentioned, such as fundamental rights (for example, the right to freedom of expression and information, or freedom and pluralism of the media), independent civic discourse, electoral processes, and public safety and health.[11]
With all of this in mind, the Commission sought to establish an obligation for VLOP/SE’s to promptly identify and investigate systemic risks arising from the use of their services. Consequently, these platforms are obligated to implement the necessary measures to provide a decisive and efficient response that counters any systemic risk identified.[12]
Moreover, the pursuit of an environment of factuality, independence, and pluralism in the media is also fundamental for the dynamism of our democracies. In free democratic societies, the media acts as a guardian of democracy, whose intents are intimately connected to a greater purpose related to upholding the transparency of public authorities’ activities and their accountability. Free and independent media must, therefore, be preserved and cultivated, particularly during the most critical moments.[13]
For this to occur, traditional media outlets, which are subject to strict ethical standards in their professional activity of public dissemination of news material, must nowadays strive to maintain and refine these already high standards of professionalism and editorial autonomy to ensure the stabilization of public trust in the communication channels they are most familiar with. This effort is essential and will act as catalyst in the process of combating the negative effects of disinformation.[14]
In a context also highly relevant to this issue, it is equally important to mention the recently approved Regulation on Media Freedom, which promotes pluralism, freedom, and independence of these communication channels, their editorial choices, and, above all, their journalists against any illegitimate influences – be they of a public or private nature – in the name of a stronger and more vibrant democracy and in defence of the principles established in the CFREU, in light of the increasing threats to autonomous media outlets.[15]
In this circumstance, extra care must be taken to ensure that the most basic information is clearly and accessibly transmitted during voting periods – such as information about voting dates and locations, voter eligibility, the means and security of voting systems, the candidates and their ideologies, among others – in order to prevent gaps that may facilitate destabilising attacks and harm the proper functioning of the entire voting process.
Similarly, the area of digital media literacy may possibly be the one that could provoke a more effective reduction in the most negative effects of disinformation. In this sense, public education and awareness on this subject must be comprehensive and multifaceted to confront the complex web of threats that the phenomenon currently represents. An effective investment in training on these topics is crucial to assist internet users in examining the news environment surrounding them in a more thoughtful, critical, and free manner. Many authors even consider that digital literacy should constitute the ‘driving force’ of the entire European response to this problem, given the preventive nature – and not reactive – of the measures adopted in this domain, which allow the creation of solutions with observable long-term results.[16]
In this context, it is essential to establish a delicate balance between protecting the fundamental rights typically most affected by actions taken in response to the proliferation of false and misleading information and the public interest in educating citizens more thoroughly on topics of significant social relevance, thereby making them better equipped to make their political decisions knowledgeably.[17]
In turn, the issue of political advertising – especially when it is conveyed through digital channels – represents another essential point to address in designing effective responses to the problem of the dissemination of disinformation.[18]
The new realm of possibilities opened by the targeting of political content poses risks to the free, open, and enlightened dynamics of European democratic societies and to the fundamental rights of their citizens. It is precisely in this regard that the Regulation on transparency and targeting of political advertising warns, indicating that the potential abuse of the opaque mechanisms for processing personal data is conceivably disruptive to the exercise of various interests, rights, and fundamental freedoms, such as freedom of expression, the right to non-discrimination, to the transparency in democratic acts, to equal opportunities, the right “to be informed objectively, transparently, and pluralistically”, and also the entire sphere of rights interconnected with privacy and data protection.[19]
The malicious use of political advertising targeting tools enables a veritable “predatory analysis of the electorate” with observable effects in sowing instability and distrust through the dissemination of false and misleading content. All these concerns, which reach new levels with computational and technological advancements, naturally deserve a robust and assertive response from all policymakers at the European level.[20]
The pursuit of greater levels of transparency is also one of the main drivers for the development of legislative instruments in the field of political advertising. In this regard, the aforementioned Regulation establishes, for such effect, some requirements regarding the transparency of political propaganda, such as clear mention of its political nature, the identity of its sponsor and its legal nature, the amounts of funds used, among others.[21]
Interference by third countries in electoral democratic processes also gains special relevance in this Regulation. Such interference is naturally associated with practices of information manipulation and the dissemination of disinformation and represents a direct attack on the heart of European democracies, which is why all efforts to counter any interference that uses politically motivated propaganda to defraud and degrade a free and informative environment must be resolutely opposed In this domain, one of the measures outlined by the Regulation relates precisely to the implementation of provisions that require, in the three months preceding an election or referendum, providers of political advertising services to only provide political advertising services to “citizens of the Union, third-country nationals permanently residing in the Union and having a right to vote in that election or referendum or legal persons established in the Union which are not controlled by third-country entities”.[22]
In this sense, especially in light of the war situation that has arisen in Ukraine, the disruptive role that the dissemination of disinformation can assume in the domain of the Union’s foreign and security policy is clearer than ever. Given its relevance and potential implications, the Union – starting from the annexation of the Crimean region by the Russian Federation[23] – recognised the harmful effects of a strong arsenal of disinformation and immediately initiated efforts to seek solutions to combat this phenomenon, that began to be felt more strongly since the incorporation of that territory and, particularly, since the beginning of the warfare in Ukrainian soil.
The dissemination of disinformation during times of war is, in general, potentially causative of a great sense of confusion and suspicion in societies which, in the face of such a disturbing event for the functioning of global geopolitics, are consuming false and misleading content about these sensitive topics. Such content is particularly capable of inflaming social tensions and raising levels of protest and doubt even in countries that are geographically distant and not directly involved in an armed conflict.
In the face of particularly serious threats to security and order in the Union resulting from the onset of military actions by the Russian Federation, the Council sought to promptly adopt a firm, solid, and peaceful stance essential for mitigating the conflict situation and protecting the central general interests being pursued, namely: the preservation of security and public order in the Union and the seriousness of democratic debate, among others.[24] In this behalf, the Council has already specifically mentioned – concerning the RT France v Council judgment (Case number T-125/22) – that the Russian Federation has been developing a “systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of destabilisation of its neighbouring countries and of the Union and its Member States”.[25]
The fight against hybrid threats in the Union must therefore be understood as a matter of national security and defence for each Member State. However, considering that the vulnerabilities of Member States to these dangers know no borders and contend with a set of competences that are sometimes divided between the Member States and the Union,[26] a collective and structured European response, complemented by all instruments, policies,[27] and programs provided at the European level,[28] should be the prioritised option.
Given this, the actions to be implemented also require a comprehensive global response, based on the capacity for surveillance, recognition, and prevention of the threat, making the most of what close cooperation among all stakeholders enables. A unified response is, consequently, dependent on the establishment of vectors of assistance between the governments of the Member States, the European Institutions, and all relevant international partners, in order to achieve a level of co-participation characterised by an aggregated and transnational approach that operates on multiple fronts.[29]
The involvement of national and international authorities at various levels (within the fields of data protection, strategic communication, cybersecurity and hybrid threats, intelligence services, regulatory bodies, law enforcement agencies, and electoral bodies, as well as the private sector and civil society itself)[30] is crucial for building an active and dynamic response that truly contributes to strengthening the resilience of societies and their critical infrastructure.[31]
International cooperation is thus key in combating hybrid threats (like disinformation), and as such, all work carried out in this regard must necessarily always be conducted in close connection with other structures, such as the EU Hybrid Fusion Cell and the European Centre of Excellence for Countering Hybrid Threats, without however leaving aside the NATO divisions relevant in this matter.
The path that the European Union has been following – built on a multifaceted, structured, and holistic response – represents an important step towards a more secure, responsible, and reliable information ecosystem. However, there are still some vulnerabilities within the scope of solutions advocated by European Institutions. In this sense, the regulatory instruments being addressed still take a very cautious stance, given the potential negative implications for the sphere of fundamental rights, a context that naturally deserves a more careful and delicate approach. However, it is also true that the constant technological breakthroughs will quickly jeopardise any positive progress made, requiring an attitude of permanent vigilance and international strategic cooperation to fight the threat and its perpetrators, which diligently addresses the risks to any democratic principles that they may seek to subvert.
In view of the above and to conclude, it is fitting to quote a phrase from Hannah Arendt, whose way of thinking – endowed with a unique timelessness – should serve as a warning for the set of challenges that lie ahead:
“And a people that no longer can believe anything, cannot make up its mind. It is deprived not only of its capacity to act but also of its capacity to think and to judge. And with such a people you can then do what you please.”[32]
[1] Communication from the Commission, Securing free and fair European elections – A Contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018, COM(2018) 637 final, Brussels, 12.9.2018, 1.
[2] Communication from the Commission, On the European democracy action plan, COM(2020) 790 final, Brussels, 3.12.2020, 12.
[3] Communication from the Commission, Securing free and fair European elections, 1.
[4] Alina Polyakova and Daniel Fried, “Democratic defense against disinformation”, Atlantic Council, Eurasia Center, 2018, 14. Available at: https://www.atlanticcouncil.org/wp-content/uploads/2018/03/Democratic_Defense_Against_Disinformation_FINAL.pdf.
[5] European Commission, Directorate-General for Communications Networks, Content and Technology, A multi-dimensional approach to disinformation – Report of the independent High level Group on fake news and online disinformation, Publications Office, 2018, 12. Available at: https://data.europa.eu/doi/10.2759/739290.
[6] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), recitals 3 and 153 and Article 1(1). Hereinafter, DSA.
[7] Maria Lúcia Amaral, “Fiscalização da constitucionalidade das normas constantes dos números 5 e 6 do artigo 6.º, da Lei n.º 27/2021, de 17 de maio, que aprova a Carta Portuguesa de Direitos Humanos na Era Digital”, Provedoria de Justiça, 2022, paragraph 14.
[8] Maria Lúcia Amaral, “Fiscalização da constitucionalidade das normas…”, paragraph 10.
[9] DSA, Article 34(1).
[10] DSA, recital 104.
[11] DSA, recital 83 and Article 34(1), paragraphs b) and c).
[12] DSA, Article 34 and 35(1).
[13] Communication from the Commission, Tackling online disinformation: a European Approach, COM(2018) 236 final, Brussels, 26.4.2018, 1.
[14] European Commission, Directorate-General for Communications Networks, Content and Technology, A multi-dimensional approach to disinformation…, 11.
[15] Council of the European Union, “European Media Freedom Act: Council adopts new rules to protect journalists and media providers”, Press release, 26 March 2024. Available at: https://www.consilium.europa.eu/en/press/press-releases/2024/03/26/european-media-freedom-act-council-adopts-new-rules-to-protect-journalists-and-media-providers/.
[16] Alina Polyakova and Daniel Fried, “Democratic defense against disinformation”, 13. ; European Court of Auditors, Special Report: Disinformation affecting the EU: tackled but not tamed, Publications Office of the European Union, 2021, 13.
[17] European Commission, 2022 Strengthened Code of Practice on Disinformation, Chapter I, paragraph b).
[18] Nathalie Van Raemdonck and Trisha Meyer, “Why disinformation is here to stay. A socio-technical analysis of disinformation as a hybrid threat” in Addressing Hybrid Threats: European Law and Policies, ed. Luigi Lonardo (Cheltenham: Edward Elgar, 2024), 16.
[19] Official Journal of the European Union, Regulation (EU) 2024/900 of the European Parliament and of the Council of 13 March 2024 on the transparency and targeting of political advertising, recital 6.
[20] Amendments adopted by the European Parliament on 2 February 2023 on the proposal for a regulation of the European Parliament and of the Council on the transparency and targeting of political advertising, COM(2021)0731, recital 47.
[21] Regulation (EU) 2024/900on the transparency and targeting of political advertising, recital 57.
[22] Regulation (EU) 2024/900on the transparency and targeting of political advertising, recital 19.
[23] Nathalie Van Raemdonck and Trisha Meyer, “Why disinformation is here to stay. A socio-technical analysis of disinformation as a hybrid threat”, 2.
[24] Judgment CJEU RT France v Council, 27 July 2022, Case T–125/22, ECLI:EU:T:2022:483, paragraphs 86, 87 e 88.
[25] Judgment CJEU RT France v Council, paragraph 22.
[26] Communication from the Commission, Securing free and fair European elections – A Contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018, 7.
[27] European Commission, Increasing resilience and bolstering capabilities to address hybrid threats, JOIN(2018) 16 final, Brussels, 13.6.2018, 3.
[28] European Commission, Joint Framework on countering hybrid threats – a European Union response, JOIN(2016) 18 final, Brussels, 6.4.2016, 20.
[29] European Commission, Joint Framework on countering hybrid threats – a European Union response, 7.
[30] European Commission, Action Plan against Disinformation, JOIN(2018) 36 final, Brussels, 5.12.2018, 5 and 6.
[31] European Commission, Joint Framework on countering hybrid threats – a European Union response, 3 and 8.
[32] “Hannah Arendt: From an Interview”, The New York Review, 26 October 1978 issue. Available at: https://www.nybooks.com/articles/1978/10/26/hannah-arendt-from-an-interview/.
Picture credits: by Lisa Fotios on Pexels.com.
