These dynamics impact on the way in which people's identity processes are built and whether and how digital society, platform society, offers ideal frameworks with which to stimulate social capital formation and, in particular, how individuals are capable of taking on board interpretational tools enabling them to make an active contribution to the shaping of these. They effectively reflect on the concept of social capital. Underlying these are ideas deriving from individuals capable of aggregating for the purposes of furthering shared goals (Morcellini Mazza, 2008) but if what prevails is the sense of solitude and disruptive drives which surveillance capitalism generates the result is the impulse which Zuboff defines "experiential expropriation" as a consequence of datafication, circulation and commodification processes. In this way digital expropriation generates control over individuals which erodes the autonomy sphere with the first victim being privacy (Zuboff, 2019, p. 205). This would seem to be a key element in thinking on the systemic disinformation processes currently under way, the direct consequences of the affirmation of the platform ecosystem. Dominant forces concentrated into just a few hands are generated and these unilaterally determine the dynamics and logics of social learning. The potential to build autonomous meaning trajectories is thus nullified, as is the ability to achieve shared knowledge.

It is on this basis that we might go so far as to affirm that the proliferation and dissemination of disinformation is no longer an episodic phenomenon but rather an integral part of a well-defined strategy designed to exploit social dynamics to build consensus and manipulate public opinion. It is a global influence industry which cuts across all social sectors and it is clear that in crisis situations what we are witnessing is changes in meaning directions. Diminished perceptions of safety and increased feelings of fear are leading to communications built around altering risk perceptions. As Beck has observed, denying risks exist does not eliminate them and if we allow a social model which minimises such problems to prevail we are allowing apathy and political cynicism to spread and increasing the gap between social and political structures respectively (Beck, 2000, p. 313). It is a visible fracture which is widening as a result of "those global risks which have generated a world in which the foundations of the dominant risk logics have been undermined and invalidated and in which there are only difficult-to-control dangers instead of calculable risks." (ivi, p. 335).

Current phenomena show that an influence strategy is under way which uses group dynamics and emotivism to channel consumption and opinions, exploiting and distorting credibility building processes.

We are in a hyper-communication era in which: "[…] everything mixes with everything. Even the boundaries between inside and outside are more permeable. We are now completely externalised in a 'pure influence network absorption and reabsorption surface' " (Han, 2017, p. 50).

Media technology has transformed society into a society of media and communication technology production is increasingly concentrated in the hands of the Big Five. Communicating via the media and disseminating contents has made individuals into consumers and consumer products for others. Twentiethcentury definition frameworks are now definitively obsolete and new ones thus need to be formulated. It is a process which requires solid cultural bases and the technological skills with which to avoid these taking shape within the circuits fixed by the creators of technology.

#### **References**

Zuboff, Shoshana: *The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power*. PublicAffairs: New York 2019. Italian translation: *Il capitalismo della sorveglianza. Il futuro dell'umanità nell'era dei nuovi poteri*. Luiss University Press: Roma.

# **Part III Justice and Misinformation**

# Francesco Biondo

# **The marketplace of ideas and its externalities: Who pays the cost of online fake news?**

**Abstract:** Since the nineteenth century, thanks to J.S. Mill, an argument against limiting the freedom of expression has been gaining ground, namely that the truth of an argument is the result of free competition between different ideas in a "marketplace of ideas" and that this competition can yield an approximate form of the truth or a robust argument. In this paper I will argue that Mill's model of the marketplace of ideas is an "idealised" model because it assumes that there is a subject who seeks to know in a detached manner, without being influenced by his or her expectations, needs, ideologies, or biases. However, the metaphor of the marketplace of ideas is still relevant because it also harbours a limitation to the marketplace itself, namely the production of "negative externalities": the spread of fake news (conspiracy theories and the deliberate spread of alarm), the polarisation of the debate, and the concentration of the advertising market in the hands of a few companies. Just as in the case of pollution, these costs need to be taken into account. How can this be done? The available conventional mechanisms seem to be insufficient because they need to pursue two conflicting goals, i.e., reducing the number of disinformation sites on the one hand and protecting users' freedom of expression on the other. Platforms may not allow competing apps to be downloaded or may impose automated and intrusive regulatory schemes. However, this means that censorship would return in the form of a "private" censor. I will compare two models for possibly solving the conundrum: the one proposed by Paul Romer of regressive taxation of platforms and the mixed model proposed by the European Commission.

**Keywords:** Fake news, externalities, freedom of expression, marketplace of ideas

# **Introduction**

Arguing about the legal regulation of so-called fake news implies, for a jurist or a philosopher of law, to examine the reasons that justify freedom of expression. Words are not just an expression, they are also communication "actions", and those actions can have consequences. If they had no consequences, we might then ask what need is there for something to be expressed. These consequences are then subject to evaluation, and the evaluation depends on the "value" that is given to the freedom to express anything: an opinion, a scientific thesis, or an evaluative or aesthetic judgement. There are several justifications for freedom of expression, understood as the claim that expression cannot be sanctioned. It is assumed that there are at least four rationales: (1) the value of the autonomy of those who express themselves (Mackenzie, Meyerson, 2021), (2) the attainment of truth (Marshall, 2021), (3) distrust of public censorship institutions (Mill, Holmes, discussed below), and (4) the participation of individuals in governing the democratic state (Bhagwat, Weinstein, 2021). Of course, advocates of free speech very often develop the four rationales together, but there is a clear advantage in distinguishing them. These rationales can then be grouped into two major classes: non-consequentialist justifications, and consequentialist justifications. The former justify freedom of expression because it is an "individual right", the latter because society as a whole ultimately benefits from it.

In this paper I will focus on a particular justification of freedom of expression (consequentialist): the argument that public debate ultimately functions as a free market (marketplace of ideas). One enters a market with a commodity (an idea), and if the commodity (or idea) is sold, then that commodity is valued (accepted as being true, valid, correct). Let us also assume that, like a marketplace, the acceptance of an idea implies that consensus about another idea (or multiple ideas) will decline. In this model, what is relevant is not the content of the goods or an idea, but the fact that these are sold. Even the presence of goods (ideas) that turn out not to meet consumer tastes (because they prove to be fake) is not a problem. Just as the market disposes of goods, i.e., leaves them unsold, because they do not meet consumer tastes, debate will weed out false ideas. No one will accept them. So, there is no need to build an institutional apparatus (censorship) that first checks which idea is correct and sanctions those who express it. Indeed, such an apparatus might even eliminate ideas that might turn out to be correct, acceptable. Or it could prevent other theses that are only correct at a certain point in time from later turning out to be incorrect in the light of new scientific evidence. Therefore, an ex-ante control would prevent any form of development. Similar to the marketplace, where the entry of a new product drives competitors to improve the goods they offer, the spread of a new idea drives opponents of that idea to improve their arguments1 . Incidentally, the four rationales stated above would also be protected.

1 According to Mokyr (2017), Britain owes its commercial success to the fact that the notion of a "marketplace of ideas" has been firmly entrenched in the country as early as the eighteenth century.

## **The birth of the "marketplace of ideas" argument**

This argument has developed throughout history over a long period of time and has three main proponents: John Milton (poet), John Stuart Mill (philosopher), and Oliver Wendell Holmes (Supreme Court justice).

The three developed their arguments at different times and for different purposes. In the brief space of this article, I will dwell only on the aspects that each author has contributed to developing the "marketplace of ideas" argument.

The first author argued that the institution of censorship is an insult to the power that truth has to impose itself on falsehood without needing any help from the public institution of censorship. There is no need for any authority to permit or prohibit an idea; if an idea is true, it will prevail over false ideas. Milton does not offer historical, methodological, or empirical arguments; it is enough for him to express his confidence in God's will to let a true idea prevail in a contest with a false idea (Blasi, 2021, pp. 21–24).

Mill follows the hypothesis that a true idea (not only in the theological realm) triumphs over a false idea through competition and explains how this is possible without the need for transcendent authorities. Any possible link to theological issues vanishes in the competition, and the advantages of accepting that false ideas may also compete become clear2 .

"But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error" (19).

The only way to get to the truth is for people to discuss and learn from their mistakes:

"In the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious" (22).

One might, however, think that what we and our group believe is true, but Mill cautions that prohibiting a false statement is not permitted either:

2 In https://eet.pixel-online.org/files/etranslation/original/Mill,%20On%20Liberty.pdf.

"To call any proposition certain, while there is any one who would deny its certainty if permitted, but who is not permitted, is to assume that we ourselves, and those who agree with us, are the judges of certainty, and judges without hearing the other side" (23).

This way we would not be seeking the truth, but only reassurance in our beliefs. Interestingly, in the following passage Mill hints at the idea, which I will return to, of the reassuring effect of group thinking:

"Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated, who sometimes hear their opinions disputed, and are not wholly unused to be set right when they are wrong, place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer; for in proportion to a man's want of confidence in his own solitary judgement, does he usually repose, with implicit trust, on the infallibility of "the world" in general. And the world, to each individual, means the part of it with which he comes in contact; his party, his sect, his church, his class of society" (19–20).

However, it is only with Oliver Wendell Holmes and his important dissenting opinion in the Abrams case that the concept of the market of ideas, or marketplace of ideas, was born3 . The Abrams case concerned the constitutionality of the conviction of a group of pacifists for circulating leaflets against enlistment during World War I under the Espionage Act. The defendants sought reversal of their sentences because these violated the First Amendment. In his dissenting opinion, Justice Holmes, who only seven months earlier had accepted the constitutionality of limiting free speech if there was a "clear and present danger"4 , made clear that the First Amendment is based on a conception of truth as a "clash" of opinions in a "marketplace of ideas".

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you

3 Abrams v. United States, 250 U.S. 616 (1919), retrieved 6.6.2022 from https://supr eme.justia.com/cases/federal/us/250/616/

4 Restrictions on freedom of expression are legitimate only if the expression is "of such a nature as to create a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

 But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe he very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country" (S.320).

Unlike Mill, Holmes did not believe that the conflict between opinions allows the correct one to prevail; he did not believe that there is a "truth" that is achieved through argumentation or that debate makes public opinion more "virtuous." As a supporter of pragmatism and Darwin's theory of evolution,

"Holmes came to value the freedom of speech largely for its capacity over time to generate new ways of thinking, discredit obsolete ideas, and alter priorities of inquiry. Those long-term consequences are what he had in mind when he pronounced the competition of the market to be the best test of truth" (Blasi, 2021, 40)5 .

#### **The failures of the marketplace of ideas**

The idea that public debate should be open to any expression regardless of its content has been constantly at the centre of controversy. And it is no coincidence that all liberal legal systems have norms that limit the exercise of freedom of expression, as in the case of hate speech, or in cases of defamation. In many countries, such as Italy, there are criteria for the exercise of freedom of the press and there are rules that make defamation through the press an aggravating

5 Let us also mention Coase (1974) who asserted the analogy between freedom of trade and freedom of expression on the basis of a realistic consideration: in both cases there are actors aiming to obtain a benefit. That is why socialist-oriented free speech advocates should accept free trade and competitive markets. If they do not do so, it is out of self-interest, because they believe their work as intellectuals is more valuable than that of economic entrepreneurs. For reasons of space, I will not elaborate on this topic.

circumstance. If there is a marketplace for ideas, it is definitely a regulated one. Not everyone can access it, and transactions can result in liability in the event of damage, as in the case of other markets. Here, too, however, critical issues arise regarding the marketplace metaphor. Does free entry into the public debate and competition among ideas really produce efficiency? There can even be "failures" in the marketplace of ideas. These failures also include the existence of negative externalities, costs, for example in terms of goods, which are not "internalised" in the transaction, but fall on the community (e.g., pollution). Who pays for the negative externalities brought about by transactions in the marketplace of ideas? I am referring here in particular to the question about who pays for a particular negative externality, the spread of incorrect news, or deliberately fake news?

#### **In what sense can the marketplace of ideas lead to "failure"?**

In general, market failure is defined as the suboptimal outcome determined by market relationships without any intervention by the state. Of course, depending on the economic theory one takes, there can be different taxonomies of market failures. Let me cite four of them (on market failures, I refer to Stiglitz, 2000).

The first case concerns the insufficient production by the marketplace of the public good "reliable information". If we all enjoy reliable information (e.g., about health care products, the economy, the weather), we get more benefits than we individually are willing to pay for. Furthermore, each individual obtaining the information does not reduce but rather increases the value of each unit of information. In this situation, however, each economic entity knows that it can benefit from it without paying for it. Producing, or even consuming, "real" information has costs. To produce it, one has to pay specialised staff and to benefit from it, as a consumer, one needs to buy the product. It is therefore more advantageous for the news producer to produce information that "copies" true information, or to reduce the cost of controlling the "quality" of the information. It is more rational to be a free-rider than to help produce the public good. This situation leads to a paradox: if the state does not intervene, then the public good "reliable information" is not produced, because each actor does not have enough incentives to avoid being a free rider. If, on the other hand, the state intervenes through funding to support the production of reliable information or worse through fines, or even criminal sanctions, of "unreliable information", these are clearly forms of control (indirect or direct) of information and ultimately of censorship (Hemel, 2021, p. 125).

The second case of failure of the marketplace of ideas is that of "incomplete markets". Often in transactions, there are obviously cases of asymmetrical information, i.e., the possibility that in a transaction one party is in possession of some relevant information that they do not want to share with the other. This is the case of the "lemon". As George Akerlof 's example of buying a used car shows, the seller has the incentive to sell at the highest price an object of which he is the only one to know the real characteristics. Under these conditions only bad quality cars will be sold, because the seller will have no incentive to sell good quality cars (ibid. p. 129). The same will happen in the information world. The "rational" publisher will be able to sell inaccurate information, passing it off as reliable information.

The third case is the creation of monopolies, with groups that manage to eliminate others or maintain a dominant position in the market. In the case of the news corporations, this can also occur by creating companies that manage to incorporate other companies instrumental in the sale of the "information" product, thus reducing costs, obtaining licenses for video or radio broadcasting, or establishing a monopoly in the advertising market. This way some parties become gatekeepers of access to the marketplace of ideas.

The fourth case is that of the "negative externalities" of a marketplace of ideas with no control over the reliability of information. Take the case of websites that spread news manipulating the risks of vaccination. For as long as vaccines have existed there has always been a fierce debate over the necessity and lawfulness of such measures. However, it is clear that the situation changes with the emergence of a public health care system that offers everyone, regardless of their health care choices, the opportunity to be treated. In the event that a large group refuses to get vaccinated, relying on blogs or other forms of information, which advise against receiving this health treatment, even those who have not made that choice, and require hospital care will pay the consequences. Just as polluters do not pay the cost in terms of environmental degradation, those who spread fake news do not pay the cost of the health care services needed to protect public health.

### **Why the remedies do not work in the digital world**

These cases of failures of the marketplace of ideas are already supported by extensive literature, and present a set of defined institutional solutions to which the traditional mass media have adapted (newspapers, magazines, television, and radio): (1) rules sanctioning the responsibility of the author for false, plagiarised or defamatory statements, (2) professional associations whose membership ensures the quality of the service offered, (3) ethical codes of conduct of the category of journalists, (4) antitrust laws on the management of broadcasting frequencies or ownership of newspapers. However, these solutions do not apply to the "digital environment", to the way information is produced and disseminated on the Internet.

On the Internet, we are witnessing a new way of circulating information: socials, digital platforms, and web engines. In the digital environment, as we will see, the rules for avoiding the failures of the marketplace of ideas do not seem to work because disintermediation has occurred between the producers of the information and its users.

While in "traditional" media there is a "filter" (or several filters) between the production of content and its dissemination, and reception, in the digital sphere there is no need for such filters. The *raison d'être* of social media, digital platforms and web engines is precisely to offer users free, unlimited, and unrestricted access to the communication arena. In this case, the ideal of the marketplace of ideas really seems to be realised. Everyone can communicate, everyone can write, and everyone can access processed information anywhere, as long as one connects to it. Therefore, the "infrastructure of speech" changes and becomes "democratised" (Balkin, 2014, 2303–2304). This can, however, produce all four failures of the marketplace of ideas, and only partially apply the solutions that are imposed on traditional media instead.

First, the protection of freedom of expression in digital platforms is, at least in the U.S., stronger than in other countries. Section 230 of the Communication Decency Act states:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230).

According to advocates of the freedom of expression, this rule has allowed today's digital technology to develop, with the emergence of giants such as YouTube, Facebook, and Twitter.

The website of the NGO Electronic Frontier Foundations reads:

"This legal and policy framework has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users. Given the sheer size of usergenerated websites (for example, Facebook alone has more than 1 billion users, and YouTube users upload 100 hours of video every minute), it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site. Rather than face potential liability for their users' actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive since 1996" (Fishback, 2020).

However, in this way, it becomes difficult to implement any regulation that would hold platforms accountable, all of which are based in the U.S. and host content that disseminates not only false judgements, but also judgements that incite violence, or violate copyright. The limits of freedom of expression remain (such as the prohibition of defamation), but they do not apply for the platforms that host the content, and that profit, as we will see, from the number of visits and shares of such content. The incentive to remove certain content is only "indirect," in terms of commercial prestige.

One might reply that in some legal systems, such as in Italy, in accordance with the provisions of the European directive, postal police can, even on the indication of a private individual, inform the platform of the presence of defamatory content, or content that violates a copyright law. Based on this notice, the platform has a legal obligation to remove the content. In addition, companies impose conditions of use on the users of their services that prohibit the use of expressions that may constitute a violation of the law (defamation, for example) or the uploading of copyrighted material. Finally, several platforms have formed units to monitor hosted content.

The result of these measures do not appear to be very encouraging. First, regarding the ability, or willingness, to prevent the spread of fake news, as a report by the NGO Center for Countering Digital Hate shows, platforms continue to host the accounts of 12 individuals who alone produce 65 % of the anti-vaccine posts on the three major platforms despite repeatedly violating the platforms' own terms of use6 . In the end, it is not clear how real the incentive is for these companies to enforce their own terms of use. In doing so, they reduce the service to be offered to their clients, giving them an incentive to switch to other providers that do not require these terms of use, and that keep the ideal of expression without limits alive, e.g. the Parler platform (Young, 2022, pp. 13–14).

Moreover, effective intervention by these private parties produces a paradoxical outcome: censorship handled by a public body through administrative measures, which can be appealed in court, is replaced by another form of censorship, i.e., private censorship. And that censorship is hardly subject to judicial review, since platforms can argue that they are merely policing compliance with freely accepted terms of use.

6 Retrieved 6.3.2022 from https://www.counterhate.com/\_files/ugd/f4d9b9\_13cbbbef1 05e459285ff21e94ec34157.pdf.

I mentioned that it is possible for members of a social network to abandon it because it is too "restrictive" in its terms of use. But one has to wonder if apps might then be available. It should be noted that apps are downloaded through two platforms; one is Google Play for Android phones and the other iOS for Apple systems. In the event that those platforms decide not to allow those companies to place apps, then a de-facto monopoly would be in place (Hubbard, 2017).

# **Antitrust taxation or supranational regulation of gatekeepers?**

This situation led Nobel Prize-winning economist Paul Romer (2021) to advocate for the U.S. government to impose a 72 % tax on the profits of companies like Facebook or Google that exceed an advertising revenue threshold. In this way, argues the author, we can avoid the danger of a concentration of economic power in the hands of a few corporations and reduce, at least in part, the spread of fake news. Then again, Romer argues, after the recent Ohio v. American Express ruling (585 U.S., 2018), there is not very much hope that hi-tech giants will be subject to any existing antitrust enforcement.

So, the question, however, is whether heavy taxation with indirect antitrust purposes solves the problem of fake news. According to Petit, the answer is no:

"competition in news distribution might not reduce fake news in the long term. Under competition, firms make lower profits. This, in turn, might trigger a race to the bottom. With lower profits under competition, firms have to cut down costs. They might be incentivized to focus on variable costs reductions. Laying off fact checkers might be a rational strategy under competition" (2020, 249).

It therefore seems that we are faced with a conundrum on the externalities of the marketplace of ideas.

Either we let the platforms govern the spread of fake news, and therefore replace a public censor with a private one. Or we let fake news continue to spread perhaps on various platforms that compete by selling services that ensure maximum dissemination with minimal (or no) control.

However, the recent proposals for European regulations on digital markets and services approved by the European Parliament at the proposal of the Commission seem to avoid this dilemma, at least in their intentions: the Digital Markets Act7 and the Digital Services Act8 (Begkamp, 2021; Tommasi, 2021).

7 COM(2020)842.

8 COM(2020)825.

Article 3 of the Digital Markets Act identifies the characteristics of those companies that constitute the "gatekeepers" for entry into the digital world:

A provider of core platform services shall be designated as gatekeeper if: (a) it has a significant impact on the internal market; (b) it operates a core platform service which serves as an important gateway for business users to reach end users; and (c) it enjoys an entrenched and durable position in its operations or it is foreseeable that it will enjoy such a position in the near future.

To be a gatekeeper, two determined criteria have been established:

These gatekeepers have particular obligations toward customers including (art. 6):

According to the directive, platforms cannot restrict access to competing platforms with less or more stringent usage rules. The risk of a private monopoly of online communication is reduced compared to what has been observed previously (for reasons of space, I will not address the issue of sanctions here).

With regard to the phenomenon of the spread of illegal content on digital platforms, the regulation of the Digital Services Act identifies in article 25(1) 45 million monthly users as the threshold above which a platform becomes subject to specific regulation (the so-called big tech companies such as Facebook, Google, etc.). These companies are subject to the obligation to mitigate the following risks (art. 26):

Of course, it is difficult to predict the outcome of these measures. Much depends on the effectiveness of controls and possible sanctions, both by national authorities and especially by EU authorities. In any case, a step forward has been taken at least in Europe to "internalise" the costs of dissemination through platforms of false or defamatory information without making private companies the "guardians" of rights in the digital sphere or worse "private censors". However, the risk of "capture of the regulator" (a substantial deference of the regulator's action to the interests of the large corporations) is always lurking, and in that case, there would be no choice but to rely on antitrust legislation (or taxation) … provided that lawmakers do not get "caught".

#### **References**

*of Freedom of Speech*, 2021, retrieved 6.6.2022 from 10.1093/oxfordhb/<PHONE_NUMBER>580.013.5.

# Laura Lorello

# **Freedom of information and fake news: Is there a right to** *good* **information?**

**Abstract:** The advent of the internet and digital platforms has revolutionised the way information is produced and disseminated. The aim of this paper was to examine whether it is possible to draw from Article 21 of the Italian Constitution that there is a right to *good* information, as an expression of the rights to be informed and to receive information. It also looked at what form of regulation is possible for the dissemination of information on the Web in order to ensure that it is true, objective, and unbiased and whether public-only regulation, private-only regulation or a form of co-regulation, which seems to be model chosen in the EU's draft Regulation, the so-called Digital Services Act, is feasible.

**Keywords:** Freedom of speech, fake news, digital platform, regulation

# **Introduction**

The freedom to express one's thought, as is well known, is regarded as an inalienable prerequisite of any democratic system and an essential condition for the very existence of democracy (Lavagna, 1970; Italian Constitutional Court, Judgment No. 84, 2/4/1969, cons. dir. 5). Its very position within the framework of the Constitution of the Italian Republic reveals its central role, projecting a person's individual dimension (Article 13, Italian Constitution) into the collective dimension, through the expression of ideas and opinions. And expression must be *free* and can take place by *any means of dissemination* other than speech and writing (Article 21.1, Italian Constitution). The new constitutional system, which recovered and restored the spaces of freedom denied by the fascist dictatorship, is affirmed in this solemn, general proclamation. This explains the need to move away from the narrow perspective of the Statuto Albertino and Article 28 in particular: "The press shall be free, but a law shall repress its abuses", which was absolutely insufficient and inadequate to the design of the new republican democracy (Barile, 1974). The provision of Article 21 of the Italian Constitution establishes two separate and distinct forms of freedom: on the one hand, the more traditional one, namely freedom in the negative sense, which sees freedom of expression as an autonomous space without interference on the part of public power; and on the other hand, the more innovative one, which links the manifestation of thought to political participation, making it an instrument for the

#### 106 Laura Lorello

construction of the democratic order (Caretti, 1997, Olivetti, 2020, Costanzo, 1993). This is the *positive implication* of the freedom to express one's thought, which gives value to "the 'pluralistic content' of our Constitution" and mutually enriches the community and the individual (Barile, 1974). Moreover, the dimension of participation places Article 21 of the Italian Constitution on the same level as the principle of pluralism set out in Article 2 and as that of substantive equality in Article 3.2, since only full freedom of expression can contribute to the construction of a pluralist society and to the achievement of political, economic and social equality.

The debate among the founders on defining the content of Article 21 (Article 16 of the draft constitution) was heated and complex in both the 1st Subcommittee and the Assembly.

Among the various issues discussed, with reference to the topic at hand, was the issue of responsibility for the content of printed publications, which emerged as early as in the proceedings of the 1st Subcommittee. In particular, it was Mr. Lelio Basso, rapporteur of the article1 , who pointed out, in reference to seizure, the need for the name of a publication's manager to be indicated: "those who want to have freedom must take responsibility for the acts they may perform". In this sense, he added, publications that do not indicate, for example, the name of the manager, "lead to a denial of responsibility, and therefore one cannot recognise freedom for it, since the principle that freedom is connected with responsibility has been established". The statements made by Mr. Basso in the session of the 1st subcommittee on 27 September 1946 follow the same line of reasoning: "when citizens do not take responsibility for what they publish, they have no right to invoke the protection of freedom of the press"2 . He therefore proposed the inclusion of rules on responsibility in the Constitution "as an invitation and as framework for lawmakers" with regard to the obligation to disclose financial statements and news sources, warning of the possible "upheavals (that) false or fabricated news can produce"3 . Therefore, the 1st Subcommittee, with regard to the periodical press, felt the need to provide for control over "news sources" (along with "financial precautions"), as expressed by Mr. Giuseppe Dossetti and supported, later, by Mr. Palmiro Togliatti, who, though with reference to the possibility for

1 I Sottocommissione, sessione del 26 settembre 1946, in Camera dei deputati, *La Costituzione della Repubblica*, vol. IV, 1970, 436

2 I Sottocommissione, sessione del 26 settembre 1946, in Camera dei deputati, La Costituzione della Repubblica, vol. IV, 1970, and also On. Lucifero, 449–450

3 *Ibidem*, 453.

the printed press to have greater financial resources, highlighted the need to supervise newspaper management, which, failing that, would "be able to act at will on public opinion", thus demanding action in defence of democracy4 . The discussion ended with the approval of this wording: "For the special functions of the periodical press, the law shall provide for controls on news sources and means of financing, suitable for ensuring public faith". As much as this reference to public faith ended up tying predominantly the question of the reliability of information sources to the sphere of criminal law, it can be said, however, that there was already, generally speaking, the problem of ensuring correct and truthful information, in order to protect the trust and confidence of its recipients.

Later, during the Assembly session of 14 April 19475 , the aspect of controlling news sources was further discussed, and it was Mr. Vincenzo Cavallari6 who noted that such control was necessary to make press freedom "truly an operating reality" and not a mere *statement of principle*7 . On the occasion, it was emphasised again that fake news, if *taken seriously* by the population, could create "such a state of disorientation of public opinion that our country would be in grave danger"8 ; and Italian democracy itself, given its recent establishment, should have been protected from this risk by entrusting this task to the state9 . This led to the afternoon session of 14 April 1947, where, after extensive debate, it was determined that the issue of controls should be addressed not in the text of the Constitution, but in a subsequent law regulating the press10. Therefore, the content of the fifth paragraph of Article 16 of the draft at that date set out that "The law may establish controls for ascertaining the sources of news and means

4 *Ibidem*, 454.

5 Italian Constituent Assembly, session of 14 April 1947, in Camera dei deputati, *La Costituzione della Repubblica*, vol. I, 1970, 848.

6 He had submitted an amendment with Ms Rita Montagnana to be inserted after paragraph 2 of Article 16 of the draft constitution, which stated "The State may order controls on news agencies in order to ascertain new sources and means of financing", Italian Constituent Assembly, session of 14 April 1947, 848.

7 Mr. Cavallari, moreover, considered it necessary that the control should cover not only the periodical press but also newspapers, Italian Constituent Assembly, session of 14 April 1947, 850.

8 Italian Constituent Assembly, session of 14 April 1947, 851.

9 Mr. Giulio Andreotti had a different opinion and feared that control over information and its financial sources would give rise to unacceptable interference to the point of "paralysing the life of a newspaper," Italian Constituent Assembly, session of 14 April 1947, 851, 853.

10 Constituent Assembly, session of 14 April 1947, afternoon session, 880.

of financing the periodical press" and several requests for deletion were submitted. In the end, it was voted down in separate parts11. It was hence decided to delete the part related to the control of news sources and to keep the part related to the control of means of financing, which was then included in today's fifth paragraph of Article 21 of the Constitution12.

The complexity and liveliness of the debate, briefly described here, thus confirmed what Mr. Ghidini said: "This Article 16 was one of the most tormented and most debated (…). And it is natural, because it is a fundamental freedom, perhaps the most typical freedom of democratic and civilised governments"13.

The link mentioned earlier between freedom of expression and political participation highlights the so-called passive face of freedom: the right to receive information and, in particular, the right to an *offer of* information, as complete and impartial but also as reliable as possible. On the one hand, it relates to the need for the pluralism of information providers and information sources, which calls into question the public entity whose responsibility it is to regulate the exercise of freedom of information within the limits of the Constitution. And on the other, it goes hand in hand with the goal of building a democratic system (Caretti, 2005), in which control over policy choices is guaranteed and the input of forms of participation in decision-making is ensured (Valastro, 2006).

Basically, in the range of situations covered by Article 21 of the Italian Constitution, the presence of a third party comes to the fore: alongside the person who expresses a thought, that is, the person who provides the information, the socalled active party, the freedom/right to inform, and alongside the public entity that has to *regulate* the exercise of this freedom, there is the recipient of the information, the so-called passive party, the person who has the right to receive the information, along with the interest in seeking the news, and who has the right to freely access all news media.

And it is precisely by taking on the role of the recipient of the information, of those on the passive side of the freedom to inform, that the founders' concern, as mentioned above, of ensuring adequate controls over the sources of the information, in order to protect the trust of citizens who are the recipients of that information, resurfaces (Caretti, 2005)14.

11 *Ibidem*, 880, 882.

12 *Ibidem*, 882.

13 *Ibidem*, 855.

14 P. Caretti, I diritti fondamentali, Ibidem, 291, highlights the distinction made by the founders between the freedom of communication of Article 15 of the Italian Constitution in which information has a precise and clearly identified recipient, and

We now come to the question of the content of the information disseminated, which has to be correct, complete, reliable and objective. This is a need already known in the past but felt predominantly, with reference to *political* and electoral information, in order to ensure equal chances among candidates15, and with reference to *advertising* information, to protect consumers and their choices. In particular, the study of the ways through which the advertising message is built makes it possible to identify sophisticated techniques, capable not only of guiding but also at times of determining consumer decisions (Lombardi Vallauri, 2019). From this perspective, the choice of individual words and their association, in a certain order or pattern, may lead a user of the message to derive a certain conclusion or believe a specific outcome to be real, without any basis of truth16.

If this process is transferred to the field of information and if it is provided outside the traditional, regulated channel of printed publications, now also digital, we are on risky ground where, as the Founders feared at the time, *fake news* can cause great "disorientation of public opinion," and be a serious danger to democracy.

While it is true that, as recalled above, the attention of the founders focused mainly on the press, the main means of dissemination of information at the time and, therefore, the one that had suffered the greatest restrictions and mortifications under the Fascist dictatorship, it is also true, however, that the intended general and abstract nature of the wording of Article 21 of the Italian Constitution, *speech*, *writing and any other means of dissemination*, has allowed and allows the guarantees of the constitutional provision to be applied to every instrument of transmission and dissemination of thought, as in the case of radio and television and, today, the Web. In short, the need to protect the active and passive faces of the freedom to express one's thought and to link it to the principles of pluralism and substantive equality runs unaltered throughout the history

the freedom of expression of Article 21 of the Italian Constitution in which information is intended for everyone "with all that this entails with regard to the protection of the interests of the recipients of the information message".

15 See Laws No. 515 of 1993 ("Discipline of electoral campaigns for the election to the Chamber of Deputies and the Senate of the Republic") and No. 28 of 2000 "Provisions for equal access to the media during election and referendum campaigns and for political communication").

16 E. Lombardi Vallauri, *La lingua disonesta*, Ibidem in Conclusions, 259, recalls the French experience regarding the association of different realities, such as *rats*, *garbage* and *illegal migrants* or *immigrants*, *criminals* and *terrorists*, an association that aimed to build a negative opinion in the population.

of the Italian Republic, and arrives in our time, affecting contemporary media. It follows that the new ways of expressing thought must also fall within the scope of the Italian Constitution and its principles, and that exactly the same needs for guarantee and protection arise for them.

If, therefore, information disseminated through the Web must also be subject to the limits that Article 21 of the Italian Constitution draws, it is necessary to investigate whether the interest being protected is the same and whether the level or type of protection to be afforded is the same. Clearly, in the world of the internet, the condition of the information user is quite different from print, radio or television. While the interest to be protected may be the same, i.e., reliance on the quality and truthfulness of information, the need for its protection is amplified and deepened by multiple factors, which make the traditional and long-standing instruments for safeguard, designed for the press or competition, insufficient. In essence, the advent of the internet, by revolutionising the way information is produced, disseminated and used, has brought about a radical change in society capable of affecting the political sphere as well (Pitruzzella, 2017).

The contours of this revolution are many and not all reassuring and positive. For example, through the Web information production has been decentralised, that is, everyone can create and disseminate information, which is certainly good from the perspective of pluralism and democratic participation. At the same time, however, there is no control over the information put into the Web, its reliability and objectivity: but do we really want more information at the price of its truth?

Moreover, once information is placed in the Web, its producer loses control of it, meaning that it will be the search engines, the so-called *gatekeepers*, which will collect, sort, classify and then place it in a position of greater or lesser prominence, without any awareness and participation on the part of the initial producer. *My* information is therefore *mediated* and *altered* by the platforms, losing its genuineness and being taken out of its original context to acquire quite different meanings and uses.

If, then, one looks at it from the side of the person receiving the information, the picture is even more worrying. On the one hand, on a platform the user receives unsearched news, which is, for example, associated with another search or context (Pitruzzella, 2017).

This reception takes place, therefore, in a situation of inattention and disinterest on the part of the individual, which, however, does not prevent the news from being perceived and *absorbed* in any case, but it does prevent it from being in the conditions of lucidity and concentration necessary to detect its falsity, erroneousness, or bias. Once it is uncritically acquired, it becomes *true* and will be disseminated as such.

On the other hand, it is the very search for information on platforms that is distorted from the start. As pointed out in doctrine, the algorithms that govern the selection of information on platforms *know* and *learn* our preferences and offer us only news and data that are to our liking or interest, leaving out all the rest. *Personalised* information, which responds only to our cultural, political, social and other tastes and orientations and does not reflect reality, its plural dimension, complexity, contradictions and conflicts, are packaged this way. However, I will believe that that information is true and complete, that reality falls entirely within its scope, and that there are no ideas, opinions, experiences other than mine. Ultimately, the very pluralistic arrangement that Article 21 of the Italian Constitution is intended to protect and that is the substance of a democratic order is lost17.

At this point a final issue emerges, namely that of finding the appropriate tools to ensure that the safeguards put in place by Article 21 of the Italian Constitution can also be fully extended to the dissemination of information through the Web, especially with reference to the right to receive it.

The solution accepted in the North American model excludes any intervention by the public entity, based on the consideration that information and ideas are like goods, moving within the marketplace: the *free marketplace of ideas*. In this sense, only the broadest freedom of circulation can lead, as with goods, to the selection and success of the best and most truthful information and the *natural* elimination of false and unreliable news.

A prerequisite of this reasoning, however, is that entities on the Web make their choices rationally and consciously, having *all* the information at their disposal, without filters or selections made by others. This is, however, an assumption that

17 The implications of this model of information, the so-called *filter bubble*, are extremely dangerous and threatening to the resilience of democracy and pluralism. Ignoring the opinions and ideas of others makes an individual self-projected, reinforces their biased positions, and puts them in contact only with those who think like them, creating a *virtual* world, far from the real one, determining its rejection and increasing its aggressiveness toward those who are different, and thus nullifying the pluralistic and solidaristic dimension of the Constitution of the Italian Republic. Without considering the negative effects on another aspect of a democracy, namely public debate: the noncontextual nature of the debate on the Web, in terms of time and space, prevents the physiological unfolding of the confrontation of ideas and the definition of common and shared positions.

is difficult, if not impossible, to realise in the world of the internet, in which the supply of news is predominantly entrusted to platforms and their algorithms. Moreover, the approach accepted overseas is rooted in a conception of virtually unlimited freedom of expression enshrined in the First Amendment of the U.S. Constitution, which prohibits the legislature from "abridging the freedom of speech, or of the press" (Pollicino, 2017).

This is a conception that is far removed from the European approach, which places precise limits on freedom of expression to protect other fundamental rights, as reflected in Article 10 of the ECHR, Article 11 of the European Bill of Rights and Article 21 of the Italian Constitution.

Therefore, the solution cannot be to let the free market of ideas find its own balance by expelling bad news on its own. Thus, the need for intervention to regulate the circulation and production of information in the network takes shape.

But who should be the regulator?

Entrusting this task exclusively to the public entity does not seem decisive, as its action may be ineffective, not to mention the ever-present risks of practicing some form of censorship. But even the choice of a solution of total self-regulation, that is, to be entrusted only to private platforms, does not appear adequate and could prove risky, as it would be a private entity, bearer of strong economic interests, to exercise control and selection over the information to be circulated within its *social network* (Pitruzzella, 2017). This is compounded by the fact that, at least in the U.S., the fundamental First Amendment principle of free speech cannot be enforced in relationships between individuals, such as the operator of a platform and its user, since it operates only in relationships between public power and private entities. And it is on the basis of this assumption that, in the case of Twitter's removal of former U.S. President Donald Trump's account, a California judge ruled out that there could be a violation of the outgoing president's freedom of expression, although he acknowledged the legitimacy of the platform's actions, since the statements made by Trump represented *fighting words*, that is, a form of incitement to violence18.

A third, possible, solution is to imagine a mixed system, in which the public entity dictates the general rules that private platforms are then called upon to apply and implement.

Basically, they should act within a predefined framework, checking information before it is placed on the network and removing content that is false or against the law or infringes on fundamental rights. Only in the case of violation

18 United States District Court- Northern District of California, order no. 138, 6/5/2022.

of the rules established by regulations or ineffectiveness of the work done by the platforms would an independent third party step in with a subsequent and subsidiary intervention designed to protect the rights involved19.

Such an assumption is found in the Conclusions of Advocate General G. Pitruzzella, in the request for reference for a preliminary ruling by the German Federal Court of Justice20.

The question submitted to the EU Court of Justice concerns the interpretation of Article 17(3)(a) of EU Regulation 2016/679 of the EP and the EU Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, with reference to the request for dereferencing of certain links displayed in searches on the Google platform, which referred to articles of a third party, published on the Web, and the request to cease the display of photos in one of the articles, in the form of thumbnails.

The Advocate General highlighted that the right to de-referencing, claimed by the applicants, depends on examining the information present in the dereferenced content, and that to give substance to this right it is necessary to define an appropriate procedure, a *procedural fairness*21.

Starting, in fact, from the consideration that *private powers* operate in the internet system that are capable of affecting fundamental rights (such as the right to be forgotten) because of their role as *gatekeepers* of information, the only way to make these rights effective is to establish "sufficient procedural guarantees" that private parties can activate vis-à-vis the digital platforms responsible for data processing, guarantees which must be matched by "correlative obligations" of the platforms22. Therefore, the private individual who has the right to request the search engine operator to de-reference a web page, which contains personal data that they believe to be untrue, must provide "a principle of proof " of the falsity of the content whose de-referencing they are requesting, provided that

19 This is a model pioneered in Italy by the Guarantee Commission for the implementation of the law on strikes in essential public services, Law No. 146 of 1990, as amended by Law No. 83 of 2000, which establishes the general framework for the regulation of strikes in public services, leaving it up to employers' associations and trade unions to implement it, through shared forms of self-regulation, on the basis of special procedures. The Commission intervenes only if the parties fail to reach an agreement.

20 Case C 146/20, TU, RE v Google LLC.

21 Opinion of Advocate General G. Pitruzzella, 7/4/2022, Case C 460/2020, TU, RE/ Google LLC, para. 42.

22 *Ibid*, para. 43, "In the internet world," the Advocate General continues, "there is a need for some form of '*procedural data due process*' ".

this is not "manifestly impossible or excessively difficult"23. The search engine operator, for its part, must carry out the necessary research to confirm the merits or otherwise of the request, examining both the data on its platform and those disseminated by the publisher of the web page where the content subject to the de-referencing request is located, including by activating an adversarial procedure with the latter. At the end of the process, the search engine operator will have to determine whether or not to grant the de-referencing request in a reasoned decision24.

If the application is rejected, the private party may turn to the judicial authority or the supervisory authority provided for in Article 51 of the GDPR25, as third and impartial parties, with a complaint against the decision of the search engine operator26.

The procedure outlined in the Conclusions seems to be embody, in essence, that mixed model, mentioned above, in which only the failure of the private parties, namely the user and operator of the platform or search engine, to reach an agreement allows the *ex-post* entry of an additional player downstream of the procedure with only a subsidiary role.

The Digital Services Act also seems to be heading for a mixed model27, thus allowing any individual or entity to report the presence of illegal content on platforms to their operators (Article 14); the platforms are called upon to carry out the necessary investigations and, if necessary, to adopt a reasoned decision to remove the information or disable access to it (Article 15). They must also set up an internal complaint-handling system (Article 17), which is in addition to the possibility of requesting the intervention of "any out-of-court dispute settlement body" and which does not, however, exclude recourse to the courts (Article 18). As mentioned above, it is a mixed scheme, in which public regulation unfolds in the subsequent action of private platforms under a predefined procedure28.

23 Opinion of Advocate General G. Pitruzzella, 7/4/2022, Case C 460/2020, TU, RE/ Google LLC, para. 44.

24 *Ibid*, para. 45.

25 General Data Protection Regulation, EU Regulation 2016/679 of the EP and EU Council, 27/4/2016.

26 Opinion of Advocate General G. Pitruzzella, 7/4/2022, Case C 460/2020, TU, RE/ Google LLC, para. 47.

27 Proposal for EP and EU Council Regulation of 15/12/2020 on a single market for digital services (Digital Services Act) and amending Directive 2000/31/EC. The act was the subject of an EP and EU Council agreement reached in April 2022.

28 See whereas (considerando) 22 of the Proposal for Regulation: (22) In order to benefit from the exemption from liability for hosting services, the provider should, upon

# **Conclusions**

The right to receive *good* information can be considered, based on the above considerations, to be part of the heritage of constitutional principles that the Italian system and the European system share. The need to prevent fake news from "disorienting" public opinion and the need to link the freedom to produce and disseminate information to an inevitable responsibility for the content of that information was already well understood by the founders, who transferred it into the intricacies of Article 21 of the Italian Constitution. Measures to ensure *good* information, designed for the press and then adapted to new media such as radio and television, prove inadequate today in the world of the internet. Here, the *pluralisation* and *parcellation* of the entities that produce news, the availability of means of transmission of immediate access and uncontrolled use, and the intermediation of platforms and search engines in the collection, selection, organisation and dissemination of information make it urgent to develop instruments capable of ensuring the effective protection of the rights of the recipients of that information.

This protection goes well beyond the traditional and, perhaps, simpler protection of the consumer or voter, since it projects itself into the far more relevant condition of citizen, who is called upon to participate in the life of the political community to which they belong and to make the choices it requires.

In this perspective, the protection of the recipient of information, by ensuring that it is true, reliable, and objective, in a word *good*, is transfigured into the very protection of democracy and becomes a precious guardian of its survival.

#### **References**

obtaining actual knowledge or awareness of illegal content, act expeditiously to remove or to disable access to that content. The removal or disabling of access should be undertaken in the observance of the principle of freedom of expression. The provider can obtain such actual knowledge or awareness through, in particular, its own-initiative investigations or notices submitted to it by individuals or entities in accordance with this Regulation in so far as those notices are sufficiently precise and adequately substantiated to allow a diligent economic operator to reasonably identify, assess and where appropriate act against the allegedly illegal content.

Caretti, Paolo: *I diritti fondamentali*. Giappichelli: Torino 2005.

# Caterina Scaccianoce

# **Correctness of judicial information and impartiality of the judge: The distortions of the media criminal trial**

**Abstract:** This analysis, which focuses on the difficult relationship between criminal justice and judicial information, examines only some of the most controversial aspects, starting with an undisputed premise, namely that over time the function of communication in judicial matters has changed, evolving from informative to formative. I will reflect on the hiatus between the real justice as exercised in courtrooms and justice perceived by the public through media narratives, paying particular attention to the distortions of the so-called media trial and the resulting bias in the exercise of judicial power. Finally, we will consider possible solutions, which, in a perspective of striking a balance between the values at stake, may preserve the dignity of the individual, starting with the innovations introduced by Italian Legislative Decree No. 188 of 2021, implementing Directive 2016/ 343/EU on the presumption of innocence.

**Keywords:** Fair trial, judicial misinformation, fake news, judicial reporting, media criminal trial, presumption of innocence, judicial impartiality

# **The criminal trial and information: Constitutional values and procedural rules**

Just as information is the most valuable asset for a liberal democracy, provided that it is reliable and plural, so too jurisdiction is an exercise of democracy only if it is known and understood.

In the folds of the complex relationship between criminal justice and judicial information there are many controversial aspects that deserve closer scrutiny. The terms "criminal justice" and "information" seem to have undergone, over time, profound changes in the way in which they interact: communication in judicial matters today has taken on a different function from the traditional one, i.e., it is no longer only "informative", but also "formative"1 . It is an increasingly cumbersome function, which is expressed in full in the so-called media

1 "From a perspective ennobled by representing a form, albeit embryonic, of control by the people over the administration of justice we have slipped into the ambition of the people themselves to judge" (Iacoviello, 2016, p. 220). The most blatant deformation occurs when the media trial steals the scene from professional justice (Amodio, 2016).

trial. A direct consequence of this change is the progressively growing distance between real justice, exercised in the courtroom, and justice perceived by the public through the media narrative. Disinformation, dissemination of fake news that arouses anxiety and alarm, and increasing loss of credibility of the justice system are the possible effects, in addition to the risk, closely related to the loss of confidence in the justice system, of opening the way to that form of degenerate democracy called ochlocracy, i.e., government by the mob, the people, their drives and their instincts (Giostra, 2018b), in which the feelings, moods and resentments of the so-called people's court take control.

At the root of these phenomena, as I said, is the media trial, which, set up in parallel to the investigation and aimed to present – as well as to reconstruct – the facts based on the prosecution's thesis shaped from the material put together unilaterally by the investigators and inputs mercilessly found by the journalists, gives the masses an anticipated truth and verdict, which is inevitably summary, different from reality, and above all packaged with rules foreign to those that govern a fair criminal trial (cross-examination for the formation of evidence, criteria for evaluating evidence, the rule of beyond reasonable doubt). The public trial will end several years after the initial uproar with a judgement bound in any case to disappoint the people, whether the actual trial fails to meet the media representation or when, on the contrary, it does.

Given that the criminal trial is a place of ascertainment where an exploratory path is developed, making it possible to pass from the *res judicanda* (the prosecution hypothesis) to the *res judicata*, i.e., the sentence that definitively concludes the trial and that the community is prepared to accept as true because it has been achieved by the method considered most reliable for pronouncing a fair judgement, it should be borne in mind that the criminal trial is also a place of guarantee and is based on various cardinal principles, including those of crossexamination, separation of the phases, presumption of innocence, and publicity. In order for the final result to be accepted by the people, it is necessary for the people to be put in a position to know the way in which justice is served (Giostra, 2020, p 27). That is why the principle of publicity is invoked: a principle (article 101 of the Italian Constitution: Justice is administered in the name of the people) that alludes to the administration of justice in a visible form (Mantovani, 2020, p. 141), becoming an instrument of control over the proper exercise of judicial power, and, at the same time, an instrument to prevent and repress inappropriate conduct2 . The principle of publicity is closely related to the trust that citizens

2 "Where it does not prevent you from carrying them out, it calls to answer for it".

must place in justice. Today, however, immediate publicity, i.e., the public going to the hearing to personally attend the trial, is replaced by mediated publicity, i.e., the narration of the trial by journalists, which, compared to immediate publicity, is qualitatively poorer. The media give us a distorted, incomplete image, they tell us only about some pieces of the trial, helping to widen the gap between justice that unfolds in the courtroom and justice perceived by the people. What is more, mediated publicity interferes with actual justice, with the risk of affecting the outcome of legal proceedings.

The criminal trial and information come into contact both when there is judicial reporting, i.e., the community is informed about a trial in progress, and when the trial is held in the media through the so-called media trial.

Dissemination in the mass media of information about the course of a criminal trial is a narrative that has significant value on a democratic level: it allows the people to see how justice is administered, reporting what justice does, endorsing it, criticising it, pressing it3 . Of course, all this must take place by following the rules. What rules? Those rules that should be the result of balancing multiple values. First of all, articles 21 and 101 of the Italian Constitution, which clearly sanction the inalienable right to judicial information, and then, articles 2, 24, 27, and 111 of the Italian Constitution, which provide us with guidance on how to exercise this right in criminal law (Giostra, 2018a, p. 12).

The interests at stake are of paramount importance: the efficiency of investigations, the honour, reputation and image of those involved in the trial, the mental neutrality of the judge, the authenticity of testimony, the trust of citizens in justice, the presumption of innocence and cognitive integrity of the judge of the hearing. In short, it is a complex of value coordinates that lawmakers should have upheld in outlining the rules of the Code of Criminal Procedure that govern the relationship between the right to report news and the secrecy of investigations. In reality, legislation gives us an unclear and inadequate set of rules4 . The code of criminal procedure distinguishes between internal secrecy and external secrecy. Internal secrecy is put in place to protect the outcome of the investigation. Article 329 of the Italian Code of Criminal

(Mantovani, 2020, p. 142).

3 The metaphor used by the European Court of Human Rights to allude to the noble function of the press is well-known, namely the "watchdog of democracy" (ECHR, 27 March 1996, *Goodwin v. United Kingdom*; resumed most recently by ECHR, 7 March 2021, *Sallusti v. Italy*).

4 For a complete overview of the rules governing secrecy and the limits of publishing court documents, see Orlandi (2017, p. 48) and Voena (2017, p. 1113).

Procedure establishes that the act of investigation is covered by secrecy until the defence becomes aware of it and, in any case, not beyond the end of the investigation. This means that there is an absolute ban on publication, except in exceptional cases where the Public Prosecutor has the power to lift secrecy on certain acts when strictly necessary to continue the investigation. Now that internal secrecy has been lifted, the need is to ensure, first of all, the cognitive integrity of the trial judge, who, due to the principle of separation of the phases, cannot know the acts carried out without cross-examination in the phase of preliminary investigations; it is also necessary to protect the correct formation of evidence during the trial, children and vulnerable persons. Well, the system of external secrecy opted for by lawmakers is the result of a compromise, criticised by many: once internal secrecy has been lifted, it is forbidden to publish the act; however, a journalist can disseminate its content, by means of a summary or a paraphrase (art. 114, paragraph 7, of the Italian Code of Criminal Procedure). The choice is a clear expression of the lawmakers' preference for the freedom of the press. Clearly, silence on the progress of investigations cannot be prolonged for long: the community must be informed about the course of criminal justice also in the non-public phase. The prohibition to publish photographs depicting a person under arrest *in vinculis* remains in place in order to counter the spectacle of police operations and specially to safeguard the presumption of innocence, since, as we know, a person in handcuffs evokes an idea of guilt. The prohibition of publishing investigation documents does not include documents containing judicial acts such as the order of precautionary custody adopted in the preliminary phase. These documents, however, almost always contain statements or wiretapped dialogues so that, if disclosed, they end up bypassing the prohibition to publish the document. Article 116 of the Italian Code of Criminal Procedure, which governs access to records, should be mentioned in this regulatory framework: records that are no longer covered by internal secrecy may be acquired by anyone who is interested. The most controversial problem of the relationship between the press and the criminal trial lies in this particular aspect. The execution of the request to gain access to the records is, in fact, left to the discretion of the judicial authority, determining a substantially non-uniform application of the rule, which leaves space for favouritism and instrumental use: sometimes access to the documents is granted, others it is not, or it is granted only to some "privileged" persons. Hence the phenomenon of so-called judicial indiscretion, namely leaks.

Obviously, the attention of judicial reporting cannot dwell on a trial for too long. That is why the press is used to turn the spotlight on the first steps, the initial phases, even though they are covered by secrecy and practice shows that journalists can still gain access to the news of the initial, and the most appealing, documents of an investigation5 . This is evidence of the inadequacy of the current legislation, which therefore deserves fine-tuning.

The favour shown for the right of judicial reporting must not and cannot become a way to bypass the rules6 . Relationships between prosecutors and the press are not always transparent, and favours bestowed by one side are often repaid by giving only one side of the story, the prosecution's. Degenerations such as the guilty rhetoric of which the press is the herald when it spreads sensational news of the successes of investigators are commonplace. For the press, news of a warrant or individuals being included in the list of suspects is sufficient to arouse the interest of public opinion, but if the news is not explained, public opinion is led to reach the wrong conclusions, without any regard for the principles and rules on which the Italian criminal trial is based. Therefore, the notice of pending inquiry becomes an indictment, an indictment becomes a conviction, and a pretrial detention order becomes the execution of a sentence of conviction. The media end up attributing to the first steps of an investigation incorrect and inappropriate probative value, thus attaching to these a reliability that they should not have. Since these are investigative findings that come from the prosecutor, and not evidence, if disclosed without being duly set in context, they contribute to making public opinion tend towards believing in the guilt of the defendants. One should focus on the professionalism and impartiality of journalists, so that they can fit for the institutional task that they have been attributed. First and foremost, journalists should know the rules of the criminal trial, and, as judicial reporters, follow them.

5 The journalist-cum-sleuth is no longer a "watchdog of democracy" but a "lapdog of the public prosecutor's office". (Giostra, 1994, p. 59).

6 The criterion that should guide journalists is to consider all relevant records of investigations as worthy of being published and, among those that are not relevant, to consider only those informations that are actually of public interest to be worthy of being published. This is the stance expressed by Strasbourg in the leading case of the European Court of Human Rights, Third Section, 7 June 2007, *Dupuis v. France*: to divulge news of public interest even if still covered by secrecy is equivalent to exercising the right to inform the public. Basically, for the supranational court, the criterion of public interest underlying the freedom of the expression must prevail over the need to protect the secrecy of investigations.

# **The media criminal trial and its distortions**

In trials held in the media, the distortions of the media narrative are greatly amplified: the distortion of reality takes on more worrying dimensions, as the line between journalistic documentation and dramatized reconstruction is blurred. From reality-TV as a mirror of reality, we pass to a style of TV that produces reality, which gives people a mere illusion of absolute transparency, which is the result of the firm belief that we are eyewitnesses to events. This anticipates the long wait for the trial to satisfy the cognitive impatience of public opinion, setting up an informal and rapid alternative forum to reconstruct the dynamics of the case with the aim of ascertaining responsibilities. It is a speedy trial out of phase with the ordinary sequence of the proceedings, focused on the first steps of the investigation, without a third-party judge, without limits to the admission of evidence, without an effective cross-examination, and without a judgement that comes at the conclusion of a criminal proceeding that provides the defendant with guarantees and protections. The people's verdict is, in fact, immediate, the trial is held before entering the courtroom, while the judge's sentence comes years later, when the people's court has already made its own, with the paradox that if the judgement differs from the media verdict it is looked upon with distrust, while if the two verdicts do match, then it is perceived as evidence that judicial action follows a path that is too slow, complicated and uneconomical. Public opinion does not have the tools to critically evaluate what is represented by the media, confusing what is true from what is a fanciful reconstruction of events.

But what is most troubling is the interference that the media trial has on real justice. There is a real risk of jeopardising the outcome of the investigation and the entire trial. The media trial is first and foremost a spectacle. It does not matter if the ordinary course of the trial dynamics is distorted or if an allegedly innocent person is found guilty; it does not matter if values such as the judge's cognitive integrity and serenity are attacked.

It often happens that those who will be questioned as witnesses in the real trial are interviewed by reporters; that technicians or self-styled experts are invited to give their opinion on the dynamics of the case, while the assessments carried out by the experts appointed by the judge are in progress. The result is "street trials" that are detrimental to the defendant's constitutionally guaranteed rights, the proper dialectic between prosecution and defence, the proper formation of the evidence and the psychological serenity of judges (Conti, 2022, p. 30). The latter is a very delicate aspect, especially when the judging panel is made up of the people's judges7 , whose status as non-professional judges, lacking technical knowledge of the law, and their natural social proximity to the case in question, risk resulting in a judgement tainted by an unconscious tendency to conform to the judgement shared by the community to which they belong (Montagna, 2012, p. 278).

The possible conditioning that mass communication can exert on the exercise of judicial power is a much debated topic. It is assumed, on the one hand, that a judge cannot be harmed in its integrity and impartiality by show trials conducted on TV (Liberati, 2018, p. 13)8 . The Italian Court of Cassation9 shares this opinion where it stated that "the press campaigns, however heated, bitter or hammering, or the pressure of public opinion are not per se suitable to affect the judge's freedom of judging, accustomed to being the subject of critical attention without that involving that a judge's impartiality can be damaged", since "the deplorable spilling over of so-called show justice, seeing newspaper headlines or watching entire talk shows that deal with judicial events still in progress in which every single argument, at times far-fetched, at times contradictory, is dissected [….] has ended up becoming such a normal phenomenon that no one pays attention to it anymore".

On the other hand, it is objected that the media inevitably ends up exerting a psycho-emotional pressure on judges, conditioning their judgement. It may happen, in fact, that the hammering by the media, in particular on television and on the web – through press conferences called by investigators, suggestive videos, targeted news leaks, publications of the content of trial documents point in one direction only – can affect the judge's sentence-making process. Judging with serenity requires not to see: that is the reason for the blindfold that covers the eyes of the goddess justice and that allows her to be impartial and unbiased. Yet, the media overwhelms us with images and videos, not always genuine, holding outside the courtrooms a parallel trial, which, with its own rules, timing and language, comes to a verdict that ends up in the courtroom inevitably influencing judges. And it is "[…] at the emotional and psychological level that media accusation theories risk becoming an undue key to interpreting and evaluating the available evidence" (Casiraghi, 2021, p. 8).

7 See Council of Europe Recommendation Rec 2003(13), with particular regard to jury trials or trials with non-professional magistrates.

8 According to whom judges have by now acquired (or should strive to acquire) the culture of the unusability of evidence which they have come to learn of.

9 Cass., III section, 12 May 2015, no. 23962, Picardi, in *Mass. Uff.*, no. 245215.

# **Institutional communication and protection of the presumption of innocence: A good starting point?**

A final consideration concerns the difficult balance between the right to report and the protection of personal dignity. The state of the art shows us a regulatory reality that is not perfect and should be rewritten through a meticulous balancing act of the multiple values involved. A first step in this direction can be found in Italian Legislative Decree No. 188 of 2021, adapting it to Directive 2016/ 343/EU on the presumption of innocence [Conti (2021, 6), Caneschi (2021,10)]. Lawmakers have provided for so-called institutional communication in two forms: proactive, i.e., functional to the dissemination of correct information that avoids presenting the suspect as guilty before the final sentence, and reactive, i.e., implying the duty of the judiciary to correct incorrect information disseminated by the press. Basically, only the Public Prosecutor or their delegate should have relations with the press, and the disclosure of news about the ongoing criminal proceeding can only take place by means of press releases or press conferences (in the latter case a motivated document indicating the relevance for the public is required). In any case, the external dissemination of information on criminal proceedings is permitted only when it is strictly necessary to continue the investigations or when other specific reasons of public interest apply. In addition, the manner and context of institutional communication should not give the impression of an anticipated guilty sentence, and information should be provided in a way that clarifies the stage at which criminal proceedings are, while respecting the presumption of innocence.

That said, we should ask ourselves whether imposing institutional communication can be considered an adequate solution to resolve the distortions deriving from the media trial. Another question is whether working on communication strategy can prevent leaks, which are often steered and uncontrolled. Obviously, the decree has not resolved the regulatory shortcomings concerning access to documents, providing, for example, for direct access to all documents no longer covered by secrecy. This solution is considered by many to be suitable for triggering healthy competition among reporters, which could result in better quality journalism (Bartoli, 2017, p. 68). Of course, caution is needed: a document in the file may be still in raw form, not yet processed or verified. In the future it might turn out that it has no criminal relevance and is therefore not relevant to the proceedings, and, nevertheless, the journalist who comes into its possession could disclose it only because the news *prima facie* appears to be of public interest. However, since it is raw data, its knowledge by the journalist should be allowed on condition that he or she knows how to read the judicial documents, how to select the information that can be published from news that cannot be published according to uniform ethical criteria established by the law not with vague and generic formulas, but with rigor and determination10.

Certainly, the current legislation still seems inadequate.

Truthfulness of the information and objectivity in description must be paramount. Reality shows us, instead, how subjective truth prevails, the one constructed by the communicator to please readers. The correctness of communication depends on subjective ethics, but "communication must take inspiration in the way it is presented from criteria of clarity, conciseness and timeliness and it must concern information of real public interest" Canzio, 2021).

The media trial condemns without leave of appeal, distorting the ordinary dynamics of the criminal proceeding, presenting and describing something significantly different from what it actually is. The further risk is that of altering democratic dynamics, inducing the community to call for reforms or to refrain from doing so not on the basis of the actual phenomenon but on the basis of the phenomenon as it is presented to it. In practice, public opinion is shaped by the media and through the media it reaches lawmakers.

The only real antidote is free and plural information, but above all it should be responsible and professional: journalists should perform their institutional task, communicating the truth and respecting the roles and rules of the trial. The current ethical standards that protect correct information, such as the Testo Unico dei Doveri del Giornalisti (Consolidated Text on Journalists' Duties), which incorporated the 2009 Code of Ethics, have not been effective. Perhaps disciplinary sanctions for violating them should be tightened. The same can be said of the rules of ethics for judges and lawyers. In short, while there is a body of ethical rules, there is a tendency to ignore them11.

10 It is worth mentioning the proposal made by Ferrarella, p. 8: journalists should renounce the claim to write everything immediately, in exchange, however, for the fact that at certain time and procedural deadlines, as the events unfold and the individual stages of investigation are brought to the attention of the interested parties, they are put on a par with the parties involved in the proceedings solely in terms of being admitted to direct and legitimate access (not as a more or less worthy, more or less scrupulous beggar) to the documents of the proceedings in all the phases in which this circulation already occurs in fact, though to a dangerously incomplete and imprecise degree.

11 For example, the 2018 guidelines of the Italian Consiglio Superiore della Magistratura (CSM), High Council for the Judiciary, are basically neglected: to avoid distortions, they called for the judiciary to abide by the principles of objectivity, transparency and comprehensibility when directly communicating their actions, avoiding the dissemination

If the objective is balanced and measured judicial information, it is necessary to avoid fuelling prejudices that drive public opinion to believe in a defendant's guilt and that have the effect of widening the gap between applied justice and expected justice and thus exacerbating citizens' distrust in justice.

The hope is that journalists will return to the courtroom to tell the story of how justice is carried out in the cross-examination of the parties, to tell the story of the public trial, the heart of the criminal proceeding, the sacred space devoted to the formation of evidence, the only one that a judge can use to decide. In the investigation phase, on the other hand, there is a need for restrained information that aims to inform and not to arouse public opinion12. To this end, the new rules introduced to protect the presumption of innocence could blunt the distortions of a narrative that almost always sees the defendant guilty, focused exclusively on the results of a phase devoted only to collecting – and not shaping – evidence, which is usually presented as if it were real evidence13.

Institutional communication, in addition to reporting news in an official form, should also contribute to explaining it to the community, taking into account the stage at which the proceedings are and the probative value or otherwise of the document being reported, so as to compensate for the lack of adequate technical training of journalists. The important thing, however, is that the system of official communication should not operate under a monopoly regime, leaving reporters free to find the information independently, but also remembering that they have the duty to check its reliability, despite the official nature of the source, avoiding "prejudicial acquiescence to the prosecution's thesis, inadequate detachment from the judicial 'power', sometimes ideologically – as well as uncritically – considered a 'counter-power' of that absolute evil called 'politics' " (Borzone, 2016). Information must remain plural and democratic, and the decision as to whether or not the news is of public interest cannot be left to prosecutors. For its part, journalists should report the facts and not only the investigations of prosecutors. Pluralism is therefore of central importance to the information system, which is managed by companies with economic, political and ideological interests.

of incomplete or inaccurate news and privileged relationships with certain members of the media community.

12 Unfortunately, the news is also a product, and as such it often follows economic criteria. In the justice sector, the product that sells the most is the one "that responds most to the expectations of the 'market', i.e., the citizens: the product of 'retributive' justice with a 'short supply chain', i.e., one that is not mediated", Varano (2022) points out.

13 Stella (2021) calls for this.

On the other hand, if justice is subject to social control, as a counterweight to the independence and autonomy of the judiciary, in order to make social control effective, it is necessary that justice be transparent and comprehensible, that it be able to speak to the citizen and, therefore, communicate. The public's right to be informed is matched by a duty of information on the part of the judicial authority from the earliest stages of the investigation14.

# **Conclusions**

To conclude, there are still some perplexities about the real effectiveness of the remedy introduced by Legislative Decree No. 188 of 2021 so that suspects and defendants have an effective remedy in case of violation of the rights conferred by Directive (EU) 2016/343 (Article 10). Lawmakers have provided that, in the event of violation of the right of the suspect and the defendant not to be represented as guilty, the interested party may, on penalty of forfeiture, within ten days of when they come to learn of the measure, request its correction, when necessary to safeguard the presumption of innocence in the trial, and on the request for correction the trying judge shall issue a reasoned ruling within forty eight hours from its filing. If the request for correction is not granted, there is an emergency appeal to the court, which may order publication of the correction. Clearly, there are several reasons to doubt the suitability of this remedy, beginning with how the relative procedure is to be initiated. The situation of weakness in which suspects or defendants may find themselves could likely encourage them to desist from initiating a request for correction. In this regard, it has been duly pointed out (Varano, 2022) that the decree limits the remedy to certain documents, leaving out many others that are often used to feed the media trial, such as, for example, the documents in which an acquittal is described as due to some procedural reason, indicating the person as certainly guilty, but not punishable, or the search and seizure decrees in which the alleged responsibilities are reconstructed, indicating the relative means of proof. It should also be noted that it is not very effective to entrust public authorities, politicians and the judiciary, with the protection of not being tried by the media, since it is,

14 Europe recommends this in Recommendation Rec 2003(13) of the Committee of Ministers of the Council of Europe; as well as Opinion (2013) No. 8 of the CCEP (Consultative Council of European Prosecutors) on "Relations between the Prosecutors and the Media", where it is suggested as a means of communication by the public prosecutor press releases and press conferences, also held with the cooperation of police authorities.

a form of protection against something that takes place in a space outside the investigations. It is preferable by far to entrust it to a "third" party, such as a guarantor of the rights of persons under investigation or under trial. A subject capable of protecting, even *ex officio*, the rights of those who are subject to a media trial and those who are potentially exposed to one by documents of the judiciary that violate European principles and national rules, but also by "extratrial documents" spread in the *media* and *social networks*15.

# **References**

15 The proposal was made by Varano (2022), according to whom "the media trial is a *virus* that affects not only the person directly concerned, but society as a whole, in which it spreads at an uncontrollable speed and has long-term effects that cannot be detected immediately. Competence, therefore, cannot be left to the individual judge even on the sole matter of legitimising the weak party tried in the *media*, nor to the sole space of the investigation or trial".

# Stefano Pietropaoli

# **Extra computationem nulla salus? Considerations on democracy, fake news and blockchain**

**Abstract** The possibility for individuals to interact without geographical constraints was hailed at the beginning of the 1990s as the start of an unstoppable process of democratisation. However, the increased complexity of the digital society and the scarcity of IT skills are leading to the progressive inability of social actors to control and critically select their cognitive sources, to the point of paralysing their ability to analyse them. Among the main focal points is the spread of fake news, which, mainly as a result of phenomena such as disintermediation and tools such as algorithms, filter bubbles and echo chambers, are able to pollute information. However, the very technologies behind the problem can also provide solutions. An interesting proposal to try to curb the problem of the massive spread of fake news is the use of blockchain technology to certify the origin of news. However, it is one thing to claim that blockchain represents a technology that can offer advantages, it is quite another to go so far as to contend that the use of solutions that leverage blockchain are capable of solving the problem at its root.

**Keywords:** Bubble democracy, fake news, freedom of thought, digital swarm, blockchain

# **Democracy and the digital revolution**

It is a matter of fact that the spread of mass media – and television in particular – has played a decisive role in the transformation of twentieth-century democracy (Zolo, 1992). What we call the "digital revolution" has become an integral part of this process, having consequences of extraordinary significance (Lévy, 1990). Many have seen in it an event capable of breathing new life into democracy. Yet there seem to be many reasons that call for caution and invite to consider more carefully the actual democratic potential of the digital revolution (Gilder, 2018).

In a debate often dominated by the polarization between "doomsters and initiates" – neo-luddites and techno-fanatics, those nostalgic for paper and pixel addicts – one of the most frequent arguments is that of the unstoppable emancipatory force inherent in digital technologies (Formenti, 2008). The web, in this perspective, is seen both as a very powerful tool for implementing knowledge in general (and political competence in particular) (Mathew, 2016) and as a means capable of offering new forms of democratic participation, from electronic voting to the instant referendum.

In this regard, it is unquestionable that new technologies can provide tools with a high democratisation capacity (Rodotà, 1997 [2004], Rodotà, 2013; Fioriglio, 2017; Gometz, 2017). However, these tools must be employed in the political, economic and legal context in which this drive for democratisation is capable of achieving coherent, non-distorting effects. One excellent example is electronic voting (Mancarella, 2013). Just to refer to the Italian legal system, the use of a digital voting system – which allows one to express one's preference via a terminal (instead of pen and paper), and ensures therefore error-free electronic counting, as well as the immediate communication of the results – is clearly compatible with the principles established by Article 48 of the Italian Constitution (personality, equality, freedom and secrecy), only if used in a polling station operated by human beings. A vote expressed with a click from the computer in one's own home, even with the use of sophisticated authentication systems, would obviously have nothing "democratic" about it.

This latter consideration, I believe, calls for a more general reflection on digital technologies and on how the web has undergone an evolution that has distanced it increasingly from the media that preceded it. At its inception, the "web" was a sophisticated communication tool that could be managed by few who, thanks to their computer skills, were able to communicate via machines. The incredible increase in computing power of processors has rapidly made it possible to develop increasingly user-friendly operating systems, thus making it possible for pre-school children (as well as primates, as the odd story of the macaque Naruto teaches) to create digital content.

The web has thus become "demedialised": anyone who owns a device and has access to the web is able to produce and disseminate information.

The possibility of interaction between individuals without geographical constraints – now offered by technologies accessible to users without computer skills – was hailed at the beginning of the 1990s as the start of an unstoppable process of democratisation (Castells, 1996). But how naive that view was has been demonstrated by the recent history of the web: from the original idea of a "distributed" network (Baran, 1964) it has become "decentralised" but polycentric (Dorogovtsev & Mendes, 2013). In other words, the evolution of the web has led to new forms of concentration of power, resulting increasingly dominated by private oligopolies.

Web users, from mere consumers, have become producers of information. Here is the core issue: the exponential increase in data and information cannot in any way match the increase in the users' ability to select information, thus developing their knowledge (and even less the "tacit knowledge" Polanyi talked about), their critical sense, and their political competence. In the days of big data, the variety and complexity of information is so great that it discourages us from embarking on critical paths and invites us to become completely self-referential.

Algorithms are now an integral part of all decision-making processes, from defining the probable recidivism rate of a convicted felon to buying the next book to read, from buying and selling shares on the stock exchange to choosing the partner most akin to our needs (Lettieri, 2020). This scenario is dominated by an absolute sense of impotence of the majority of citizens, by the rhetoric of the algorithmic black box, and by the hypostatisation of Technics. But behind every choice in the technological field there are nonetheless human beings, whose actions escape democratic control. As Bernard Stiegler noted, after all, Marx and Engels had already argued that "man is a technical being. As such, he is lured to his technics. There is a dominant class that seizes this luring power of technics to dominate those who are lured by it. And that is that way it is" (Rouvroy & Stiegler, 2015).

The increased complexity of the digital society and the scarcity of IT skills are leading to the progressive inability of social actors to control and critically select their cognitive sources, to the point of paralysing their ability to analyse them. The latter would consist precisely in the possibility of excluding what is not essential: an operation that today is suffocated by the flow of information that overwhelms us (Stiegler, 2012).

Increased knowability is not equivalent to increased knowledge. More information does not mean better decisions. Conversely, too much information creates an electronic cloud that blurs vision. As Han has argued: information now de-forms, and communication is now cumulation.

#### **From citizen to user**

Digital technologies hold enormous democratic potential. But they can also turn out to be a very effective tool for strengthening ideologies that are anything but democratic. In other words, I consider unfounded both the visions of a necessarily salvific technology and the arguments of those who demonise the digital era as the insidious and incurable fruit of the capitalistic logic.

What I would like to stress is that these technologies can and should be governed politically. There is no destiny in the drift we are witnessing: but we need awareness, knowledge, open-mindedness and imagination to get out of the phase of denial of politics that we are experiencing (Preterossi, 2011).

#### 134 Stefano Pietropaoli

It was not "Technics" – a hypostatised fetish that would like to justify impossible nostalgia – but the neoliberal and depoliticising post-ideology that made the oligopolies that control the web possible. We are living what we can call, without any rhetoric, a "revolution": but even if it is a revolution in our way of living, thinking and being, it is not a democratic revolution. In the absolute majority of cases, if we do a search on the internet, we use the Google search engine; if we buy goods online, we use the services offered by Amazon; if we want to interact with other individuals at a distance, we use Facebook/Instagram/WhatsApp (the trinity of the empire founded by Mark Zuckerberg); if we use a mobile phone, we exploit the potential of the Android (Google again) or Apple operating systems. "Distribution" has become "concentration," but I insist: this outcome was the result of a series of deliberate and entirely "political" choices (Foroohar, 2019; Taplin, 2017; Wu, 2013).

The ability of capitalism to merge with the control of technological development and its applications is revealed in its most recent expressions: the "capitalism of platforms," or – to use Shoshana Zuboff 's expression – "surveillance capitalism" (Zuboff, 2019). Regardless of the different perspectives to address the problem, the criticisms levelled against this outcome share an analysis of the crisis of democratic institutions and the deterioration of citizenship. The parable in which modern citizenship was inscribed, in which individuals moved within political communities to which they felt responsible, has come to an end. Citizens have become consumers, mere passive users of variously offered services, who express their decisions in the same way they express their purchasing preferences. And in the same way, therefore, their electoral inclinations can be scrutinised, through data mining processes.

If the life of users is by now increasingly projected into the internet, also the individual political and legal dimension suffers the same fate. We are thus witnessing an integral datafication of the personality, with remarkable consequences in terms of the effective protection of freedoms and the concrete exercise of fundamental rights. Reduced to holograms floating on screens, users incessantly exchange data and information about what they do, think, and experience. Existence is totally "protocolled" and made controllable this way, continuously monitored by a digital panoptic: this is not a futuristic dystopia, but a factual reality, linked to the unwritten law by which the control of users is the more pervasive the easier it is to use the devices they use.

As Damiano Palano has effectively argued (Palano, 2020), the critique of party rule and the push towards the personalisation of politics – elements that already characterised the "democracy of the public" – have combined in a new dynamic of the relationship between citizens and information and communication technologies: while voters had previously been radio listeners and television viewers, but still an "audience", an audience watching a common show, now they are turning into self-referential, fragmented "bubbles", unable to express a political unity.

Public space is thus reduced to a "social network". Democratic discourse is no longer possible because the user is structurally aphasic. There is no discourse but only opinions: a continuous regurgitation of "likes" that bubble up in a fragmented and polarised cyberspace, where one's own convictions are made to resonate without being open to any dialogue and, often, with a hybrid violence – suspended between virtual and real – but no less terrible.

# **Fake news between disinformation and misinformation**

In the scenario I have tried to outline in the pages above, the new structure of information opens up new issues that call into question fundamental rights such as freedom of expression.

The current structure of the internet allows anyone with a device and access to the web to disseminate information and news. While, on the one hand, this can represent an opportunity for the development of public discourse and the guarantee of plurality of information, on the other hand, it is necessary to reckon with the possible negative consequences of this dynamic.

The way information is produced, disseminated and used has changed at a dizzying pace since the advent of the web. A system in which the individual plays an active and completely new role has now been established: just having a PC, a smartphone or a tablet transforms users from simple users of the news to producers. The web has broken the monopoly of mainstream media. Today everyone can create information, comment on information already on the web or on social networks, share content entered by others and propose new content. This fracture has contributed to the start of the so-called disintermediation process, i.e., the elimination of intermediation structures – "filters" or "intermediate bodies" – between two or more users in the process of communication and service provision.

The speed of access, the possibility to connect anywhere thanks to mobile devices, the almost zero cost, and the immediacy make the internet – and social media – the individual's favourite place to get information. The primacy previously held by traditional media is thus undermined and we are heading towards the twilight of the media established in the twentieth century.

This phenomenon of disintermediation overrides the classic structure of professional associations, including that of journalists. In doing so, it also eliminates the controls and standards required to perform certain roles in society, creating a particularly significant vulnerability to the status of the information professional. And in this perspective, we cannot fail to perceive as alarming the increasing diffusion of phenomena such as filter bubbles and echo chambers, which represent a complex device of information pollution.

The "filter bubble" is the result of algorithms that analyse the behaviour of individual users online, show them the news, content and posts most akin to their opinions and in line with their ideas. The consequence is that users are offered content that is always close to and consistent with their own opinions and are seldom offered news and information that embraces other lines of thought or alternative beliefs. Often users are unaware of this mechanism also because of the illusion of total freedom that the web conveys to us and that lets users believe that they are completely independent in their choices and in the way they inform themselves on the internet.

The phenomenon of filter bubbles is accompanied by that of echo chambers. Whoever is inside an echo chamber will hear repeated endlessly what is being said by others who are with him or her, in an increasingly confused and distorted version-but nevertheless destined to remain the only source of information for the reference group. People who get their information from a social network and have only people who embrace the same ideas as they do in their circle of friends find themselves at the centre of an echo chamber where every thought will be returned and amplified without anyone questioning it. This triggers the further dynamics of the "confirmation bias", which pushes individuals to select in a biased way the ideas and information that surround them, instinctively going to seek and prefer those in line with their ideals and personal beliefs. This mechanism is crucial for the effectiveness of fake news: if the false or manipulated news that is proposed to us is oriented in the same direction of the ideals of those subject at the centre of the echo chamber, they will surrender any critical defence and will tend to accept that news as true without checking it in any way.

The current prominence of social media means, therefore, that information is increasingly produced by the flow of content generated by users, who are inclined to divide into groups that are similar from an ideological point of view. This is a "friendship paradox" that causes the creation of illusory majorities that use social media as a sounding board for invented, misleading, and distorted information. It is important to note that fake news can be either false or misleading and can be spread either with the deliberate intention to deceive or out of actual ignorance of the truth, i.e., even without being aware of the incorrectness of the news spread. Fake news can in fact be a source of disinformation but also of misinformation: in the first case, a piece of news is intentionally created and spread with the awareness that it is false; while in the second case, a content, an article or a post is shared ignoring its falsity. In other words, fake news not only alters a subject's or social group's perception of reality but causes them to share it in a spontaneous and participatory manner.

It is also important to highlight that not everything that is called fake news is completely false news: on the contrary, the most dangerous and effective fake news is precisely that mix of verified and invented news. There are several varieties of misinformation, each with unique characteristics. First, there is satire or parody, which lacks the will to create fake news but risks obtaining the same result as the latter if the satirical news is taken as true. On other occasions, however, misinformation is achieved through the manipulation of facts and data that are carefully selected to convey a negative image of the person or event being reported. Other manifestations of incorrect information are identified in false connections and false context. In the first case, the title of the article or the images it contains evoke something different from what turns out to be real content.

In summary, fake news are completely false news or partially true but manipulated, passed off as correct information and circulated via the web. Their creation or spreading can be voluntary, that is, accompanied by the user's awareness that the news is false (in this case we speak of disinformation), or it can be involuntary, when the user ignores the falsity of the news and, believing in its truthfulness, spreads it (in this case we speak of misinformation).

This is an ancient phenomenon, but one that has taken on unprecedented importance with the advent of the Web 3.0. Through social networks, fake news can circulate with a much greater speed and capacity than in the past. Circulation is facilitated by the fact that they are articulated through a decentralised communication system in which barriers to entry, control mechanisms, and clear accountability provisions are lacking. It is in this thicket of information that more or more frequently we come across fake news, deep fakes, hate speech: phenomena that pollute information and make it difficult to distinguish reliable news from false or low quality news.

The mechanism of the filter bubble immediately reveals how the strategy that drives the spread of fake news has been developed in a commercial context: the algorithm profiles users, captures their tastes and attitudes to spending, and provides news capable of attracting their attention and influencing their behaviour. The user "shares" the content multiple times, triggering an amplifying effect that conveys, along with the fake news, advertising.

If this mechanism was born as a marketing strategy, however, it is on the political level that it unlocks its disruptive potential. Fake news does not only serve to convey incentives to purchase, but it also produces politically relevant effects, conditioning the opinions of users and creating pockets of consensus on specific issues, to the point of undermining a country's political stability.

The disintermediation that characterises the Web 3.0 enables new political uses of communication. Just think, for example, of an election campaign. Today, a candidate can have direct contact with voters effectively, quickly, and at negligible cost compared to traditional strategies. A speech given during an election campaign can be delivered in a certain place and be shared immediately, reaching the electorate in every corner of the country. Perhaps there is, however, another more relevant aspect: the ability to tailor the message to the audience. Thanks to the traces that users leave more or less voluntarily on social networks, the organisers of an electoral campaign can draw on a whole series of information and data regarding possible voters. This way, thanks to an accurate analysis of elements such as gender, age, likes, place of residence, habits and so on, it is possible to tailor an electoral message that suits the audience to which it is addressed. At the same time, social platforms make it possible to analyse public opinion at all times, rendering the mood of the electorate on a given topic intelligible moment by moment, and thus enabling real-time updates of electoral strategy.

In this perspective, it is clear that if the use of social networks is accompanied by the use of fake news, the process of building political consensus is radically disrupted. For empirical confirmation, suffice it to think of the results of the Brexit referendum or the election of the 45th President of the United States (Allcott & Gentzkow, 2017), events in which fake news played a significant role in overturning forecasts, favouring respectively the exit of the United Kingdom from the EU and the victory of Donald Trump over Hilary Clinton (Special Counsel R.S. Mueller III, 2019).

# **Blockchain: Does technology take, does technology give?**

We have seen how the use of social networks has facilitated access to a colossal mass of information without mediation and control. If we are living today in the age of integral knowability, we are not, however, living in the age of integral knowledge. On the contrary, we have to face phenomena that make access to reliable information more complex, thus altering or even preventing access to knowledge, the forming of political opinion, and public debate.

Law (along with rights) is being challenged by technologies. However, the very technologies behind the problem can also provide solutions. For some time now, research centres and software solution developers around the world have been developing strategies that make it possible to detect early and then break down the viral potential of fake news (Sharma et al., 2018).

Combating the spread of fake news on social media, which is ontologically predisposed to the creation of "noise" (Zubiaga et al., 2018), in particular, requires a critical approach in the perspective of data mining (Shu et al., 2017), which allows identifying solutions that are data-oriented (and therefore aimed at the analysis of datasets), but also feature-oriented (content analysis), modeloriented (supervised or completely entrusted AI tools) and application-oriented (aimed at the detection or removal of fake news).

There are many tools that digital technologies can offer to ensure the trustworthiness of news disseminated online (Zhang & Gupta, 2018). I am thinking, in particular, of the ever-widening array of artificial intelligence strategies built on applications of machine learning and deep learning (Ahmed, Traore, & Saad, 2017), such as genetic algorithms (Sahoo & Gupta, 2020) and Graph Neural Networks (Mahmud et al., 2022).

But the most promising solution is probably the use of blockchain technology. The idea behind blockchain technology dates back to the 1990s, when Stuart Haber and Walter Scott Stornetta (Haber & Stornetta, 1991) developed a technique capable of marking digital documents in order to prevent the possibility of backdating them. However, it is only twenty years later, with Satoshi Nakamoto and the invention of Bitcoin, that the blockchain has established itself as a tool for exchanging information in a secure way, without the intervention of third parties responsible for ensuring its certainty. Bitcoin does nothing more than allow a participant to carry out digital transactions directly with another party without the need to resort to and rely on a centralised intermediary to validate payments.

Blockchain, as it is known, is only one of the available Distributed Ledger Technologies (DLT). This particular category of technologies is characterised by a peer-to-peer distributed ledger system in which the entries in the database are replicated across a sequence of nodes. Moreover, the system is regulated through shared and distributed consensus mechanisms among all nodes.

Distributed ledger technologies differ both from technologies based on a centralised ledger as well as those that are characterised by a structure based on a decentralised ledger. The centralised ledger, which is the most common, is characterised by a strictly centralised one-to-many relationship. In this type of technology everything must be managed in relation to a centralised structure: trust comes from the authoritativeness of the person at the head of the organisation. The decentralised ledger, instead, introduces a centralised set-up at local level, so that there will be several central cores characterised by a one-to-many relationship, which, in turn, have relations with all the other central cores always through a one-to-many relationship. This will give multiple central entities. In the decentralised ledger, governance and trust are still entrusted to a centralised entity.

The distributed ledger differs from these two models in that there is no central entity: there is no head, and a fully distributed logic is adopted. Trust and governance are distributed among all parties, as is consensus.

The blockchain is, therefore, a structure of shared and immutable data: a sort of digital ledger in which information is contained in blocks accompanied by fingerprint hashing and temporal validation. Each transaction is signed and validated, and then stored in blocks and associated with a timestamp. Each block is uniquely associated with a hash, generated by a non-invertible algorithmic function. Each block, besides its own hash, also contains that of the previous block (with the only exception of the first block, called "genesis"). This way the hash acts as a link between the various blocks and guarantees the non-alteration of the block and the data it also contains thanks to strategies such as "proof-ofwork" (PoW), a consensus algorithm that avoids the risk of tampering even by attackers with very high computing power. The set of blocks concatenated by means of a cryptographic function and hashes constitutes the ledger, that is, the public register in which all transactions are recorded in a definitive, transparent and sequential way.

The key actors in this mechanism are the miners who compete, through computers or computer systems, to solve the mathematical problem (the proofof-work) that allows adding a new block to the chain and to obtain a reward. Whenever a new block is added, it is sent to all nodes in the network, which can then verify the block and ensure that it has not been altered. If this check is successful, each node adds the block to its blockchain.

Unlike centralised structures, where control, data management, and authorisations are entrusted to a central authority and the system is based on the trust placed in it by all participants, the management of data updates in distributed registries is done with the cooperation of the participants that make it possible to access, distribute, and share data. Thanks to the use of one of the many existing consensus mechanisms (which can be distinguished into permissionless or public, permissioned or private, and hybrid chains), these technologies allow intermediation by third parties to be eliminated: all users participating in the chain can verify and control the correctness of transactions.

The decentralisation that characterises the blockchain makes it difficult to manipulate and particularly reliable. If one of the nodes belonging to the chain is compromised, the other nodes retain their operability and preserve the chain.

And so here we come to the core of the matter: is it possible to imagine the use of blockchain technology, as it is able to guarantee the immutability, traceability and authenticity of the data it contains, in the fight against disinformation and misinformation online?

Thanks to its characteristics (consensus-based decentralisation, transparency, security, immutability and efficiency), blockchain has proven to be an extremely versatile tool, suitable for use in a very wide variety of sectors. Often associated with the phenomenon of cryptocurrencies, this technology represents a platform for the exchange of information and data that can potentially be used in the most diverse fields: from supply chain management to the management of a patient's medical record, from the remuneration of the authors of a piece of music for each listening session to the automatic refund of a flight ticket that has been cancelled.

The blockchain can therefore also offer the possibility to trace the process of a news item, to keep track of its author, to ensure that it has not been modified during distribution and sharing on online platforms, and to determine with certainty the date on which an article was written. In other words, it could fulfil two important functions to counter the spread of fake news: certify the author making it possible to assess his or her reliability and trace the path of the news item allowing for a reconstruction of its "history".

However, it should be stressed that, while on the one hand the mechanisms highlighted above can prove to be a valuable aid in assessing the reliability of news, ascertaining its origin and originality, on the other hand blockchain is not able to guarantee that the news is "true": if the news originally recorded is false, it will remain so, and the chain will limit itself to guaranteeing its traceability, originality and origin.

Many research centres around the world are working in this direction. One of the most promising systems (Qayyum, Qadir, Janjua, & Sher, 2019) is based on a structure with three key elements: a publishers management protocol manages the authors of the publications, checking the reliability and authoritativeness of the sources; a smart contract for news publishes the news on the network, accompanying it with relevant information such as the name of the publisher, the timestamp, the public cryptographic key; finally, building the news blockchain, composed of "honest miner nodes", maintains the integrity of the system.