Constitutional Challenges in Combatting Disinformation and the Five Eyes Alliance

Abstract

As democracies and politicians globally struggle to adapt to the age of social media and digital platforms, attention has turned to how countries can respond to the emerging threat of fake news. Increasingly sophisticated use of social media platforms could potentially enable adverse actors to spread targeted disinformation while remaining largely outside of governmental control. With the individual perpetrators unable to be targeted directly, attention is increasingly turning to how states can regulate social media companies and platforms in order to combat the rise of fake news. There are, however, significant challenges to designing such regulations, including ensuring that regulations capture the intended adverse actor and conduct. Additionally, and importantly, overbroad regulation of disinformation may undermine the underpinning principles of democracy and free speech. As such, care is needed to ensure that any domestic regulations targeting fake news do not force states away from their democratic values. This chapter explores how Five Eyes members can balance these competing interests and, in particular, how different states' constitutional protections of free speech rights will force them to adopt differing domestic policy responses to combat fake news. In doing so, this chapter considers potential policy responses and argues that while states will, due to constitutional constraints, necessarily adopt different regulations, there is desirability in seeking a unified, transnational approach.