Tortious disinformation and digital platforms

The spread of false and harmful speech has always existed but it has often fallen within the protection afforded to freedom of expression as a fundamental right. In the Internet era, extending civil liability to digital platforms for the dissemination of unlawful contents has always been regarded with skepticism and disfavor, also because of the potential chilling effect. Since the dissemination of dangerous fake news has been increasing in recent years, the idea of preventing them through an expansion of torts has gained ground. As a part of EU soft law (COM(2018) 236 final), a “catch-all provision” focuses on instrumentalizing the spread of disinformation for profit purposes. To this extent it should be noted that the most serious threat does not depend so much on the peculiar content disseminated, but rather on the algorithm that govern digital platforms. The EU “Digital Services Act” (DSA) tries to cope with such complex issue, enhancing a co-regulatory approach in order to mitigate this technological and systemic risk. If the DSA opts mainly for public enforcement, on the other hand it still acknowledges the coexistence of civil liability, which could derive precisely from a breach of cooperation duties and would recall the interpretative value of the aforesaid “catch-all provision”.