Don’t Shoot the Message: Regulating Disinformation Beyond Content

Abstract

This paper approaches regulatory strategies against disinformation with two main goals: (i) exploring the policies recently implemented in different legal contexts to provide insight into both the risks they pose to free speech and their potential to address the rationales that motivated them, and (ii) to do so by bridging policy debates and recent social and communications studies findings on disinformation. An interdisciplinary theoretical framework informs both the paper’s scope (anchored on understandings of regulatory strategies and disinformation) and the analysis of the legitimate motivations for states to establish statutory regulation aiming at disinformation. Departing from this analysis, I suggest an organisation of recently implemented and proposed policies into three groups according to their regulatory target: content, data, and structure. Combining the analysis of these three types of policies with the theoretical framework, I will argue that, in the realm of statutory regulation, state action is better off targeted at data or structure, as aiming at content represents disproportional risks to freedom of expression. Furthermore, content-targeted regulation shows little potential to address the structural transformations on the public sphere of communications that, among other factors, influence current production practices and disinformation spread.