Fighting Online Disinformation : Did the EU Code of Practice Forget about Freedom of Expression?

The problem of disinformation online is a source of growing concern for EU policy makers. During the political events of 2016, it became clear that the spreading of so-called “fake news” can create risks to democratic political processes, including integrity of elections. With EU elections on the way, policy makers attempted to mitigate those risks as quickly as possible. In September 2018, the European Commission published the Code of Practice on Disinformation. The Code is described as a voluntary, self-regulatory mechanism agreed on by representatives of online platforms, leading social networks, advertisers and advertising industry. While online disinformation is a serious issue, enlisting private platforms to suppress dissemination of online content that is not illegal may have unintended consequences. The aim of this essay is to look at the Code of Practice on Disinformation from the perspective of the right to freedom of expression. In particular, the essay focuses on two questions: 1) what are the policy implications of co-opting private entities to regulate speech? 2) what safeguards could be introduced into the Code to help mitigate the risks to freedom of expression?