In case you’re a “fact-checker”, “media literacy expert”, “academic researcher”, “news producer” or “news consumer”, “regulator”, “content moderator”, or, if you’re professionally or otherwise engaged in imparting and receiving information, you may wish to know that you are urgently in need of help. At least, that’s what the European Digital Media Observatory (EDMO) says on its website. You see, EDMO is extremely worried that even those of you who have mastered “strong media literacy skills” are not always capable of distinguishing information from disinformation. The problem is, so EDMO, that some or most of you are unaware of the fact that “[l]ow-cost digital publishing tools and online platforms allow malicious actors to spread false, misleading, and manipulated information through an ecosystem of cut-outs, proxies, aggregators, and amplifiers that can effectively mask the original source of information from information consumers.” (emphasis added)
The Information Laundromat
In the eyes of EDMO, its “stakeholders” are credulous targets of “information laundering”. In today’s online information-jungle, even those of you who are professionally engaged in dealing with information can’t be trusted with detecting and evaluating “the biases, political agendas, and credibility of information sources”. You are helpless in “effectively combat[ing] information threats, including those from hostile state actors.” EDMO promotes itself as the unbiased and friendly guide by offering its “stakeholders” the tool to overcome their incapacity to “tackle disinformation”: the Information Laundromat. This is a “lead generation tool” that can be used “to determine if and how websites share architecture and content” and find out whether “a queried article has been shared across other sites, including known propaganda or disinformation sites.” (emphasis added) Of course, it isn’t you, but EDMO that knows which known sites bring known propaganda and known disinformation and which sites don’t. Most likely, EDMO used its own Information Laundromat to determine who’s bad and who’s good, and that’s how it came to know that “Russia” ‒ what else … ‒ is a very bad actor, while other bad actors are COVID-19-sceptics and Climate-Emergency-deniers.
EDMO is a creation of the EU Commission
Anyone who is endowed with a grain of “media literary skills” can see who is the actor that’s behind EDMO. Yes, indeed, it’s the European Union that’s acting as the truth-loving and utterly reliable good actor that is prepared to put aside its own biases and political agendas when the Common European Good is at stake. Briefly put, EDMO is an EU-funded “Project” ‒ numbered “SMART 2019/1087” ‒ that started its activities in June 2020. Initially, EDMO received a “start-up” sum of more than 11 million Euros. Its funding for the year 2024 amounts to no less than 8 million Euros. The EU Commission created EDMO “with the aim of supporting an independent multidisciplinary community to tackle the phenomenon of disinformation”. EDMO is composed of “regional hubs” and a central platform and governance structure which supports and coordinates them. According to the Commission, a Hub “involves organisations active in one or several Member State(s), that will provide specific knowledge of local information environments so as to strengthen the detection and analysis of disinformation campaigns, improve public awareness, and design effective responses relevant for national audiences. The activities of the hubs are carried out in full independence from third-party entities including public authorities.” ([i])
Outsourcing censorship
You may wonder why the EU “outsourced” the tackling of disinformation to “communities” such as EDMO and instructed EDMO to carry out its tasks in full independence from third-party entities including public authorities. Well, just look up Article 11 of the Charter of Fundamental Rights of the European Union (2012), which concerns the fundamental right of “Freedom of expression and information” and you’ll see that “everyone has the right to freedom of expression” and that this right “shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Apparently, the EU is well aware of the fact that its own Fundamental Rights Charter prohibits it from directly tackling and interfering with information. In its Guidance on Strengthening the Code of Practice on Disinformation the Commission solemnly proclaims: “From its inception, the EU approach to countering disinformation has been grounded in the protection of freedom of expression and other rights and freedoms guaranteed under the EU Charter of Fundamental Rights. In line with those rights and freedoms, rather than criminalising or prohibiting disinformation as such, the EU strategy aims to make the online environment and its actors more transparent and accountable, making content moderation practices more transparent, empowering citizens and fostering an open democratic debate. To this end, the EU has sought to mobilise all relevant stakeholders, including public authorities, businesses, media, academics and civil society.” ([ii]) (emphasis added)
No “prior constraint” for good and bad actors
In other words, even “malicious actors” spreading disinformation can’t be deprived of the fundamental right of expression and information laid down in the Charter. Which doesn’t mean that they shall be protected against being exposed and identified as bad actors and that, as the case may be, their information shall not be exposed as disinformation that must be “countered” to foster “open democratic debate”. Just in case EDMO’s relevant stakeholders would be uncertain as to what kind of information they should be “countering”, in its European Democracy Action Plan (EDAP), ([iii]) the EU Commission provided us with the following definitions:
“misinformation is false or misleading content shared without harmful intent though the effects can be still harmful, e.g. when people share false information with friends and family in good faith.”
“disinformation is false or misleading content that is spread with an intention to deceive or secure economic or political gain and which may cause public harm. ”
“information influence operation refers to coordinated efforts by either domestic or foreign actors to influence a target audience using a range of deceptive means, including suppressing independent information sources in combination with disinformation.” ([iv])
So, even when it comes to takling known bad actors, the European Public Authority, to wit, the European Commission, publicly pledges to honour its Charter of Human Rights and refrain from legislation that imposes a “prior constraint” on imparting and disseminating disinformation by prohibiting it as such. Even when public harm is caused by disinformation spreading “influence operators”, in the European Union Article 11 of the Human Rights Charter stands as the Holy Grail.
Violating Article 11 of the ECHR
Yet, there are instances when the European Public Authority concludes that it has no other option than to descreate the Holy Grail that is filled with our Fundamental Rights. You see, there are potentially very very very bad actors in the EU whose freedom of expression and imparting information must be completely suppressed by unconditionally constraining their freedom of speech prior to the “speaking”. These actors are sooohh bad, that even in case they make non-misleading and purely informative statements or claims about the effects of their products, they shall be prohibited by law to utter such claims. These actors were identified and singled out by the EU legislature as “food business operators”. By way of the European Nutrition and Health Claims Regulation (NHCR / Regulation Regulation 1925/2006/EC), which was enacted in 2006, the European Union prohibits the use of “unauthorized” claims about the beneficial effects of foods (“health claims”) in what it defines as “commercial communication”, i.e. information originating from food business operators. The prior constraint concerns all information concerning the relationship between a food and human health provided by a food business operator in its “commercial communication”. So it is that, since 2006, all health claims should first go through the wringer of the EU’s Health Claims Laundromat to determine whether or not they deserve authorization by the EU’s Public Authority.
Appropriation without remuneration
This “Laundromat” was installed in Parma (Italy) at the offices of the European Food Safety Authority (EFSA). The laundering procedure works as follows: food business operators may “apply” for the EU’s approval of a health claim by submitting it to the European Commission together with the claim’s scientific substantiation; the Commission then submits the “application” to EFSA; EFSA then “launders” the claim and its substantiation, and in case it finds the claim to be sufficiently “clean”, i.e. substantiated by scientific research, it notifies the Commission of its findings; after some additional political scrutiny, the Commission then authorizes the claim and publishes it in a public register; whereupon all food business operators marketing the particular food to which the health claim applies may then use the claim in their “commercial” communication. This is how the EU misappropriates the work, time, energy and investment of one food business operator ‒ and, in some cases, the applicant’s intellectual property ‒ by “authorizing” the relevant health claim in order to turn it into a public good without any remuneration going to the applicant. The result being that all health claims made in the European Union in food business operators’ communications are now “owned” by the European Public Authority and originating from its official Register of Health Claims.
Masking the source of health claims
Of course, consumers are completely unaware of the fact that a health claim that they come across in what they understandably perceive as “commercial communication” coming from a food-product’s manufacturer is in fact information that is owned, controlled, authorized and registered by the State. This is how the European Public Authority manages to substitute commercial for its public information by inserting the latter into the former without informing the public about the insertion. This sleight of hand is accomplished by depriving the apparent originators of the health claim used in their communication ‒ the food business operators offering a specific food-product to consumers ‒ of their fundamental freedom of expression and so coercing them to serve as the Union’s “cut-outs”, “proxies”, “aggregators” and “amplifiers” in order to effectively mask the fact that the health claim is coming from the European Commission’s official Health Claims Registry.
The key issue
Lets leave aside the question whether the health and knowledgeability of European consumers are better served by the EU’s ex ante facto system, that combines an absolute prohibition of health claims with a complicated authorization procedure, than by an ex post facto system of sifting out and prohibiting, as the case may be, claims that are found to be unsubstantiated. The key issue here is that in order to replace the latter system by the former, the European Union had to breach Article 11 of its Charter of Human Rights. By taking control of all information that concerns the relationship between a food and human health in consumer-oriented (B2C-type) information, the EU legislature arrogated and usurped the food business operators’ fundamental freedom of expression, as if that freedom were a right that exclusively belongs ab initio to the legislature.
EDMO and the NHCR
Now, coming back to the EU’s EDMO project, the next question is: why is the EU prepared to respectfully and unconditionally honour its Charter of Human Rights by abstaining from directly ‒ ex ante facto ‒ interfering with the freedom of speech of “known” information influence operators who are “coordinat[ing] efforts […] to influence a target audience using a range of deceptive means, including suppressing independent information sources in combination with disinformation”, while at the same time subjecting a specifically targeted group of business operators to a prior constraint type of censorship that prohibits that entire group’s speech before it is reviewed and before it occurs. Comparing the EDMO framework with that of the NHCR, a bona fide food business operator who is prepared and willing to diligently and truthfully inform consumers about the health benefits of his food-products ranks lower than a malicious information influence operator who spreads “known” disinformation. In other words, instead of being brandished, mouthcapped, side-tracked and discriminated ex ante facto as “despicably malicious actors”, shouldn’t food business operators be allowed to exercise the same fundamental freedom of expression that the European Commission is granting “information influence operators”?
Who will speak for you?
In case you’re not a food business operator, you may think that your fundamental right to freedom of expression is still in safe hands, even though EDMO may be “countering” your factual and truthful information by labeling or mislabeling it as mis- or disinformation. Just be aware of the fact that the NHCR shows that the EU is more than prepared and willing to breach its own Charter when it seeks to control speech by “authorizing” what may and what may not be said. Perhaps, we should mind the words spoken in 1946 by the German Lutheran Pastor Martin Niemöller: “First they [the Nazis] came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.” Transposed to our current time frame, Niemöller’s words could very well be paraphrased as follows: when the European Commission came to take the right to freedom of speech away from food business operators, many of them, including yours truly, did speak out. But that didn’t stop them from from taking away our freedom of speech. When the time comes when they come to take the freedom of speech away from what they call “bad actors”, will we go along because we’re not bad actors? Or, while condemning what they say, will we defend their fundamental right to speak? And then, when the time comes when they take away the freedom of speech from the good actors, will there be anyone left to speak for them and, last but not least, for you?
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[i] See the European Commission’s website – Overview of EU funded projects; European Digital Media Observatory; DIGITAL-2024-BESTUSE-TECH-07-EDMO; https://ec.europa.eu/info/funding-tenders/opportunities/portal/screen/opportunities/topic-details/digital-2024-bestuse-tech-07-edmo
[ii] Communication from the Commission; Guidance on Strengthening the Code of Practice on Disinformation; Brussels, 26.5.2021 COM(2021) 262 final; See: https://digital-strategy.ec.europa.eu/en/library/2022-strengthened-code-practice-disinformation
[iii] See: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/new-push-european-democracy/protecting-democracy_en
[iv] Definitions provided by EDAP can be found in footnotes 18, 19 and 20 on page 5 of The 2022 Code of Practice on Disinformation; European Commission website; https://digital-strategy.ec.europa.eu/en/policies/code-practice-disinformation
