Governing fake news: social media regulation and right to freedom of expression in the era of COVID-19 emergency

Around the world, governments are regulating the (dis)information that spreads on social media under the imperative of preventing and controlling fake news phenomena. The risk is that the uncontrolled dissemination of information could increase the adverse effects of the COVID-19 health emercency by leveraginf false and misleading news. The World Health Organization defines this phenomenon “infodemic” and warns governments against the perils that the uncontrolled dissemination of information to the public can generate in terms of loss of life. However, governments across the world could use the emergency as a pretext for the implementation of new, draconian restrictions on the right to freedom od expression, as well as to increase social media censorship. This article analyzes the stringent legislative and administrative measures recently implemented by governments in managing fake news on social media to discuss the implications on the right to freedom of expression. Aiming at understanding this phenomenon, the legal definition of fake news will first be examined in the academic debate (Section 1). Subsequently, analyzing the regulatory response implemented by governments both at the international level (Section 2) and at the EU level (Section 3) is carried out. Based on the idea of (social) media as “wathcdog” of democracy, one of the main goals of this article is to demonstrate how the public law guarantees and protects freedom of expression as a fundamental right of the individual at the international and European level, looking beyond the fake news phenomenon and considering it as a usual problem of a “mature” democracy (Section 4). Finally, a model of regulatory policy based on behavioural findings, instead of stringent administrative measures, is suggested for the future.