The EU Code of Practice on Disinformation: The Difficulty of Regulating a Nebulous Problem

The EU Code of Practice on Disinformation is a government-initiated “self-regulatory” instrument that is unlikely to achieve its goal of curtailing “disinformation.” The primary hurdle the EU (and other democratic societies) faces starts with the ambiguity surrounding the concept of disinformation, which makes it difficult to define the problem and devise appropriate counter-measures. For “disinformation” points to content deemed to have a pernicious effect on citizens and society even though that content is not itself illegal (unlike incitement to violence or child pornography, which are caught by other laws), and regulating it directly could undermine the fundamental right to freedom of expression. To skirt around this, the Code applies only to a small group of large platforms and advertisers’ associations (not publishers or other parts of the information ecosystem); contains a limited series of measures that may curtail advertising revenue and the impetus that gives to the dissemination of certain content; and encourages transparency, system integrity, media literacy and research access. The Code does not, however, extend to the actors who create the content and drive disinformation campaigns, nor does it address the inauthentic behavior behind the rapid and widespread dissemination of that content – two critical elements that would help narrow the problem definition to the arguably more manageable issue of “viral deception.”