Rethinking the role of the liberal state in the regulation of 'fake news'

Abstract

The proliferation of fake news has emerged as a significant global challenge in the digital age. When a state seeks to regulate online content through laws in order to safeguard the truth, however, it is frequently criticised on the grounds that such regulation is inconsistent with the right to freedom of expression and the established principles of liberal and democratic legal frameworks. Underlying this criticism is the lack of a conclusive conception of truth in contemporary political theory that informs such frameworks, which makes an adequate theoretical and normative assessment for future rule- and policymaking essential.

This thesis aims to explore and resolve the theoretical and normative difficulties underlying the current debate over the content regulation of fake news. It engages with legal and political theories, in addition to doctrinal analysis, to develop a normative understanding of the problems raised by fake news and derive key guiding principles for its regulation.

The thesis argues for a principles-based approach for the liberal state to regulate fake news through law in a way that is cognisant of the harms potentially caused by fake news, notably when viewed against the open architecture of the internet. First, this thesis puts forward a definition of fake news that places normative emphasis on what it argues is the key objective that the regulation of fake news should pursue – namely, preventing the epistemic harm of fake news. Secondly, the thesis revisits the notion of truth in political liberalism and, on that basis, introduces a conceptual and practical framework that aims to reconcile the content regulation of fake news with the protection of individual autonomy in line with liberal purposes. Indeed, it is argued that liberalism cannot be founded solely on neutrality that does not contribute to a meaningful autonomous life, but to protect autonomy requires the state to play a role beyond what individuals can accomplish on their own in the age of fake news. It will be explained that the regulation of fake news by the state should therefore be perceived as a means of promoting individual autonomy rather than curtailing it, insofar as it seeks to enhance the intellectual capabilities of individuals within the context of democratic culture.

Third, this thesis considers the question of who should perform the role of ‘arbiter of truth’ in the content regulation of fake news. It will be argued that the ultimate authority in determining the veracity of information should rest with the courts of law, given in particular the inherently public character of fake news in the digital era. In doing so, the courts not only fulfil their fact-finding function in discerning truth from falsehood, but also serve as the guardian of due process and fundamental rights. It is thus crucial to ensure more robust judicial oversight for the content regulation of fake news, so that the exercise of discretion by the first ‘arbiter of truth,’ whether that be a public or private actor, to identify and combat fake news in the first instance is subject to adequate legal safeguards.