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Freedom of Speech and the Regulation of Disinformation on Social Media
Social Media,Disinformation,Freedom of Speech,Marketplace of Ideas Theory,Marketplace of Ideas of Truth,Marketplace of Ideas of Democracy,Self-Regulation,Social Media and Technology of Internet,Gatekeeper,Meta-Regulation,
|Publication Year :||2021|
Disinformation has become a significant question since the emergence/prevalence of social media.
At the beginning of this thesis, I define disinformation as facts that are objective false, and explore what we mean by objective true. By doing so, I indicate the relationship between objective truth and correspondence theory. That is: A true proposition (or sentence, statement, belief) means that it must correspond to facts or external objective objects. Then I refute some (but not all) philosophical claims that deny the existence of objective truth.
This thesis clarifies the phenomenon of Disinformation on Social media into two dimension, one is the new problem, and the other is the old problem.
Referring to the new problem, I mean the structure of information communication concerning social media is much different from the traditional one. I point out that whether in production or the spread of information, the rise and prevalence of social media have made disinformation more likely to appear and cause more impact.
The old problem refers to some human behavior patterns are amplified when using social media. Therefore, the effect of Disinformation on social media on how people receive and deliver massage, may be more serious due to these existing behavior patterns.
This Thesis further explores the legitimacy of regulating disinformation on social media. At the practical level, I take Germany and the United States as comparative examples of freedom of speech, arguing that the answers to Disinformation problems –not only whether disinformation is in the scope of freedom of speech but also to what degree should we protect it-- will be different concerning different constitutional contexts. As far as Germany is concerned, it basically stated that false facts are not within the scope of freedom of speech protection, and only exception is protected. In contrast, The United States believes that even if the facts are wrong, they will still be protected from freedom of speech.
I choose to further explore these problems by taking the marketplace of idea theory into account. Because it has been the backbone of the development of the freedom of speech in America for a long time, influencing both discourses of academia and the doctrines of freedom of speech. By locating disinformation in the marketplace of idea theory, I focus on the legitimacy of regulating disinformation on social media at the theoretical level.
This thesis distinguishes two versions of marketplace of idea theory. One is the marketplace of idea of truth, the other is the marketplace of idea of democracy. I argue that disinformation is the market failure of both versions, so it is legitimate to regulate disinformation.
For the marketplace of idea of truth, I propose that Disinformation highlights not only the challenge of new technologies making the marketplace of idea of truth difficult to function well to seek truth, but also the theoretical flaw that the marketplace of idea of truth is not necessarily related to the discovery of truth. The former market failure is caused by phenomenal change, and the latter is the fundamental flaws of the presupposition of the theory.
As for the marketplace of idea theory of democracy, By the purpose of protecting marketplace (that is the public discourse), I distinguish two subversions of democratic marketplace: one is to promote effective functioning of the democratic process(in narrow sense), the other is to promote democratic self-governance(in broader sense).
I argue that disinformation will not only cause negative impact on both subversions of marketplace of idea of democracy, but also affect their purpose. Therefore, at this theoretical level, it is legitimate to regulate disinformation, but it must be further measured with the possible harm caused by government.
At last, I propose that when designing the actual legal system to regulate Disinformation, we can take some factors into account to reduce the harm and maintain the legitimacy of the regulation.
In the last part of thesis, I discuss what is an effective mean of controlling Disinformation on social media. I explore the role of contemporary social media as an intermediary of speech dissemination, and it’s capability of controlling speech on its platforms. Then I further examine the self-regulation of social media as the controlling model of Disinformation. I argue this self-regulation model as regulating methods will have defects, and these defects finally make self-regulation of social media unable to effectively solve the problem of Disinformation.
In response to defects above, this thesis proposes the meta-regulation model that can effectively deal with Disinformation and take users’ freedom of speech on social media platform into account. The meta-regulation model requires policy goals set by public power, but at the same time, it lets regulated targets have certain self-regulation discretion to decide how to meet policy goals . And I argue this meta-regulation model can be justified by the status as information gatekeeper occupied by social media in contemporary times.
After proposing the concept of this meta-regulation model, I use Netzwerkdurchsetzungsgesetz (Germany’s Network Enforcement Act, also called NetzDG) passed by Germany in recent years as the specific legislative example of meta- regulation model, and examine whether it will be unconstitutional in Taiwan’s constitutional context. I argue that NetzDG as the meta-regulation model, it’s aim of regulating Disinformation and protecting user’s freedom of speech, is legitimate, and NetzDG, as a measure, is suitable and necessary to achieve that regulating aim.
In terms of equitable principle, on the one hand, the public interest of regulating Disinformation outweighs the interest of social media, so it can pass the equitable principle regarding requiring social media regulating Disinformation by force. On the other hand, however, user’s freedom of speech is not sufficiently protected by NetzDG. Therefore, in terms of protection of user’s freedom of speech, NetzDg might be unconstitutional. This thesis finally recommends some appropriate and possible measures to protect users’ freedom of speech.
|Appears in Collections:||法律學系|
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