Disinformation, Democracy and Digitization : A study of EU’s regulation of disinformation online, assessed in relation to the protection of the freedom of expression and information in the ECHR and the EU Charter.

The purpose of this essay is to examine whether current EU regulation of disinformation online is justifiable from a constitutional law perspective, assessed in relation to the protec­tion of the freedom of expression and information. The study initially clarifies the motives behind the EU regulation in question by examining the potential effects that a widespread dissemination of misleading or false information could have on democracy. The protection of the freedom of speech and information provided for by Article 10 of the ECHR and Article 11 of the EU Charter is later examined as regards to the possibility of regulating disinformation and the possibility to hold online intermediaries responsible for the content which they mediate and store. Both existing and recently proposed EU regulation of disinformation is mainly based on what can be considered as a union initiated self-regulation: platform companies are encouraged to counter disinformation on their own initiative through terms of use and content moderation. To some extent, these efforts are then monitored and supervised by the EU. The primary motivation to counteract disinformation is that it may jeopardize citizens’ abilities to make informed decisions and thereby impede public debate. Addi­tionally, an extensive spread of disinformation is considered to undermine citizens' trust in democratic institutions. Since the regulation aims to protect the purposes of the freedom of expression and information, as central preconditions in a well-functioning democracy, it can to a certain extent be considered advantageous from a rights perspective. Meanwhile, the regulation also raises some concerns evaluated in the light of the Convention and the Charter. In particular, it could be questioned whether the regulation is compatible with the legality requirement of Article 10 ECHR and Article 52 (1) of the EU Charter. Furthermore, the risk of platform companies removing more content than the provisions allow may be con­sidered significant, especially in view of the broad EU definition of disinformation. Hence, the EU regulation of disinformation raises a conflict of interest regarding the risk of disinformation and the protection of freedom of expression and information in today's digitalized democracies