Social media, and digital technologies, have changed our access to information by challenging social and legal norms and rules born in a media context different from today’s. To reflect on the challenges posed by misinformation, the Swiss chapter of the International Commission of Jurists has organised, in collaboration with several law schools, a series of meetings throughout Switzerland in which young researchers are invited to present their work alongside renowned scholars. The Universitą della Svizzera italiana’s Law Institute (IDUSI) hosted one of the meetings on Tuesday, 22 November: "The Right to Non-Misinformation between Market and Public Service," featuring Antonio Nicita, professor at LUMSA University and former member of the European Commission’s Regulatory Monitoring Committee and Commissioner of Italy’s AGCOM (Autoritą per le garanzie nelle comunicazioni); Marta Taroni, PhD candidate at G. d’Annunzio University of Chieti-Pescara; and Andrea Frattolillo, PhD candidate at the University of Lausanne.
The meeting opened with an introduction by Professor Federica De Rossa , director of IDUSI, on the need to meditate on how the growing political and economic power of social media affects the way we exercise our fundamental freedoms and democratic rights. The floor was then handed over to Professor Antonio Nicita , who, starting from his essay "The Marketplace of Truths. Why Misinformation Threatens Democracy" (Il Mulino 2021), outlined the need to overcome the metaphor of the "marketplace of ideas." According to this concept, traced back to John Stuart Mill’s Essay on Liberty, freedom of expression guarantees that truth emerges from the confrontation of various opinions; in this liberal view, therefore, competition must be fostered by guaranteeing space for every opinion in a genuine "marketplace of ideas." This approach has, for example, guided the broadcast law in the United States. Underlying it, however, is an assumption we now know is problematic: rationality and autonomy from "information consumers." As numerous cognitive studies have shown, humans have a limited rationality that is amplified by the algorithms that today, on social media, select information by profiling users and proposing what matches their preferences. The "market of ideas" is thus being replaced by a "market of truths", which, feeding on the myth of absolute freedom of expression and the illusion of knowledge, creates information bubbles. In reality, such bubbles constitute privileged places for user manipulation or disinformation strategies: the problem is no longer access to information so much as its selection. At the centre of media regulation should be, according to the author, no longer just the right to information but rather a right not to be misinformed, for example, through transparency of information flows, control of profiling and greater user empowerment.
PhD candidate Marta Taroni presented a possible strategy to achieve the latter goal through nudging, the so-called "gentle nudge" presented by Richard Thaler and Cass Sunstein as an alternative to obligations and prohibitions to change people’s behaviour. Nudging acts mainly on the structure of choices, making some options (such as taking healthy meals in the cafeteria or donating organs) easier than others and, according to the researcher, could be used as a tool for virtuous counter-manipulation of the dynamics of the digital marketplace of ideas. Taroni gave the example of data-processing policies on various sites that we are led to accept without reading: nudging could be used to push users toward more responsible choices, namely by inducing them to accept only a selection of cookies to surrender less personal data to the algorithm.
PhD candidate Andrea Frattolillo , on the other hand, analysed the possible role of the modern public service in managing misinformation (dissemination of fake news) and disinformation (misinformation that aims to deceive and manipulate public opinion). Legally, freedom of opinion protects the dissemination of fake news, despite the fact that misinformation limits the right to be informed. It is precisely in this misalignment that public service finds its place. However, to succeed in this role of countering disinformation, the public service cannot be limited, as it is now, to broadcasting alone but must include all media.
Social media and misinformation