Introduction

It seems strange to recall how recently the internet and social media were heralded as powerful forces for democratization. These were the tools that toppled tyrants, amplified the voices of people long oppressed, and connected grassroots movements around the world. That narrative has changed. In recent years, platforms like Facebook, Twitter, and YouTube have provided new hosts for an old pathogen: disinformation. False information deliberately spread over social media has infected election cycles around the world, and the tendency of these platforms to promote disinformation has emerged as a grave transnational threat.

Disinformation has proven especially difficult to control because it preys on a fundamental human right and a central element of democracy—freedom of expression. Under international human rights law, individuals may express, seek, and receive information and ideas on any form of media, including the internet and social media platforms where modern disinformation tends to spread. Beyond its inherent value as a human right, freedom of expression also plays an indispensable role in any democratic system, which depends on a free exchange of ideas and information. Weeding out disinformation without inflicting collateral damage on freedom of expression is no easy task.

Two Flawed Options: The State-Centric Approach and the Civil Society-Focused Approach

Efforts to control disinformation have centered around two broad approaches: regulating disinformation directly through the powers of the state or empowering civil society to combat disinformation without government intervention.

State action aimed at curbing disinformation creates dangerous opportunities for abuse by leaders with autocratic ambitions. Even if enacted in good faith, government efforts to control disinformation must walk a tightrope to avoid undue infringement on freedom of expression. But the most troubling transgressions have come in bad faith, from leaders who have increasingly used fake news laws as a pretext to suppress dissent and maintain power. The playbook is already well-established: internet shutdowns to prevent the spread of fake news, criminalization of broad categories of disfavored speech, regulatory power to remove content from social media platforms—all of these tactics have grown popular in recent years among illiberal politicians. Policymakers should carefully consider these risks before creating tools for aspiring autocrats.

Governments concerned with the inherent risks of attempting to regulate disinformation might also pursue a hands-off approach, relying on civil society to come up with solutions. This approach comes recommended by the UN Special Rapporteur for freedom of opinion and expression. A civil society-focused approach involves promoting free access to information, protecting journalism and civic space, and enhancing digital literacy. Though this strategy would avoid creating governmental powers ripe for abuse, policymakers can be forgiven for wondering whether civil society is up to the task, given the well-documented struggles with disinformation even in countries with vibrant civil societies and strong journalistic institutions. A hands-off approach, therefore, may only trade the risks of overreaction for the perils of inaction—this is the dilemma that disinformation poses to democratic states.

A Promising Third Option: Combating Disinformation Through International Institutions

Governments dissatisfied with the state-centric approach and the civil society-focused approach might find more appeal in a third option: combating disinformation through international institutions. Vesting authority in an international institution to monitor and regulate against disinformation would avoid the major flaws of the state-centric and civil society-focused approaches. In contrast to the state-centric approach, regulating disinformation at the international level would not risk undermining democracy. International civil servants, unlike officials in national governments, would not have incentives to abuse anti-disinformation laws for the purpose of maintaining power. Furthermore, national leaders with autocratic ambitions would not be able to gain control over any international authorities that are empowered to monitor or regulate disinformation. And unlike the civil society-focused approach, regulating disinformation through international institutions avoids the risks of inaction. International institutions can be empowered with the full range of authority necessary to combat disinformation effectively.

Opponents of an international approach to combating disinformation would certainly raise arguments against this strategy. First, some may argue that no state should surrender its sovereign authority over an area of such fundamental importance to its domestic political life. Regulating the flow of information, however, has never been among the traditional powers exercised by a democratic state, nor should it be. By contrast, the issue of disinformation fits squarely within the category of transnational problems that have historically been entrusted to international institutions. Second, opponents of an international approach might argue that an international institution can violate freedom of expression just as easily as a national government can. This is undoubtedly true, but it ignores a key difference: unscrupulous leaders in national governments would have a strong incentive to violate freedom of expression in order to win elections and weaken opponents; international civil servants do not have that incentive. 

Outlining the substantive provisions of a regulatory regime for combating disinformation is far beyond the scope of this post, but two broad elements are worthy of mention. First, the international authorities charged with regulating disinformation should be insulated from national interest and empowered to act independently. These officials should serve in their personal capacity, rather than as representatives of member states, and their regulatory actions should not depend on unanimous member state support. Otherwise, the effort could fall prey to the inter-state squabbles that have hamstrung many international institutions. Second, an international response to disinformation should not be housed at the United Nations. Multiple UN member states are actively promoting the spread of disinformation, and those states would scuttle any plan to combat disinformation at the UN. Fortunately, the advantages of regulating disinformation at international institutions do not require global buy-in. The key is to create the legal authority needed to address disinformation without placing that authority in the hands of the country-level politicians with the greatest incentive to abuse it. That can be accomplished at an existing regional organization, like the OAS, or through a new specialized institution.

Conclusion

Modern disinformation has already proven its staying power. It has featured prominently in most of the major national elections since 2016, and it will continue to do so until states come up with a way to stop it. Civil society has not been able to meet the challenge. Government efforts pose risks to democracy even more significant than those presented by the problem itself. States should come together at the international level to meet this delicate and urgent problem with a restrained and effective response.

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Clark Orr is a second-year student at Georgetown Law, a Global Law Scholar, and a staff editor for the Georgetown Journal of International Law. He graduated from Georgetown University’s School of Foreign Service in 2018, where he majored in International Politics with a concentration in International Law, Institutions, and Ethics, and earned a certificate in Religion, Ethics, and World Affairs. Prior to law school, Clark worked as a paralegal for Curtis, Mallet-Prevost in New York. He has also worked as a law fellow for the Center for Civilians in Conflict, focusing on issues of international humanitarian law.