The effects of disinformation on democratic society in the context of human rights law

Although its not a new concept, the phenomenon of disinformation, which has become more visible in recent years, basically constitutes an interference with the right of individuals to access accurate information and thus prevents the healthy formation of public opinion in a democratic society. While democracy requires society to be able to make decisions based on accurate information, disinformation can hinder the functioning of this process, manipulating voter behavior and undermining public trust in democratic institutions. This thesis examines the effects of disinformation on democratic society from the perspective of human rights law. The thesis does not ignore the importance of combating disinformation; however, it also examines the regulatory efforts of states and the contributions and interventions of other actors in the fight against disinformation in relation to fundamental rights. The fact that this issue requires a detailed balance analysis from various angles constitutes the pillar of the sub-headings addressed in the entire thesis. The first part of the thesis focuses on the conceptual definition of disinformation and its comparison with different concepts. As a matter of fact, disinformation, as a rule, appears as one of the forms of online expression. However, it is deemed necessary to clarify the differences between disinformation and other similar concepts, especially propaganda for ideological purposes under the umbrella of information pollution, so that the fight against disinformation can be carried out in the right place. The concept of disinformation may have a similar effect as information pollution, but while information pollution is evaluated in a broader framework, the element of intent comes to the fore in a narrower scope in disinformation. In other words, the purpose of disinformation is to manipulate individuals' thoughts and perceptions by spreading false information. In this respect, firstly, the conceptual scope of disinformation and its relationship with the perception of "truth" in the virtual environment, which is shaped as a new public sphere, are discussed. The conceptual scope and potential effects of disinformation increase the importance of verification activities, especially in the online public sphere. The necessity of questioning information is a tool that enables access to accurate information. Unchallenged information can shape and mislead public debate. It also plays a critical role for healthy debate in a democratic society. The institutionalization of verification activities, fact-checking and the effective use of fact-checking tools can go a long way in combating disinformation. Unchallenged information can misdirect public debate and misleadingly shape public opinion. Therefore, the thesis argues that the institutionalization of verification activities and the effective use of tools to ensure access to accurate information are essential to minimize the harm of disinformation. This part also discusses the role of the state and various actors, including technology companies, journalists and individuals, in combating disinformation. Firstly, the legal review of state intervention is assessed mainly in terms of the balance between freedom and security. Undoubtedly, the role of the state in combating disinformation has an important place. The state has various regulatory powers to combat disinformation, and these powers can have horizontal effects on fundamental rights. However, the state may not only regulate but also act as an actor of disinformation. It has also been underlined that the state itself has an obligation to take measures against the dissemination of false information and to make accurate information available to the public. As such, criminal law is one of the most important tools used in the fight against disinformation. However, at this point, it is important to note that the principle of legality must be respected. Therefore, the deterrent effect of such regulations on civil society and individuals has also been examined and their detrimental effects on democracy have been mentioned with examples from comparative law. State control must be monitored within the framework of the law and the balance between this intervention and individual rights and freedom must be maintained in each concrete case. On the other hand, not only the state but also other actors have important roles to play in the fight against disinformation. In particular, the extent of intervention by technology companies, the principles of oversight and the self-regulatory role of online platforms play a critical role in preventing the spread of disinformation. These platforms may use algorithms and verification tools to moderate the content shared by users and detect misinformation. However, the responsibility of these companies is not without its challenges, as the balance between freedom and security is a matter of debate in the decision-making processes of technology companies, especially in the context of judicial guarantees. On the other hand, the role of content producers is also crucial in the fight against disinformation. The online transformation of traditional media and the principles of responsible journalism play a critical role in ensuring access to accurate and reliable information. The cooperation of online actors in the fight against disinformation is also a factor that increases the success of this process. In addition, the cooperation of national and international actors, especially the state, technology companies and individuals, is considered an important strategy to mitigate the effects of disinformation. The second part of the thesis examines the effects of disinformation on harmful discourses in a democratic society. The potential of disinformation to promote polarization in society is particularly addressed in the context of combating hate speech and discrimination-based discourse. In particular, the chapter emphasizes the threat such harmful content can pose to democratic debate and its divisive effects on society. Disinformation has the potential to spread harmful discourse that can profoundly affect democratic society and threaten democratic debate. Harmful content not only harms the individual, but also has divisive effects, leading to polarization in the public sphere. Some of this content carries elements that fall outside the scope of legal protection and serve to further divide society. Unlike harmful content, disturbing content can harm social order without interfering with people's free will. Discussions on relative values can show how harmful content can transform public perception and harm different points of view. Anti-democratic discourse can jeopardize democratic processes by polarizing society against each other. Discrimination-based discourses constitute another dimension of disinformation. Dangerous elements such as hate speech can lead to the ossification of discrimination in society by targeting particularly vulnerable groups. Therefore, it is important to develop a more effective approach against hate speech and discrimination-based discourse in the fight against disinformation to preserve social peace. In this context, a comparison has been made by utilizing the jurisprudence of the European Court of Human Rights (ECtHR) and international documents, especially in terms of categories of harmful content and evaluation within the scope of freedom of expression protection. On the other hand, the effects of harmful content on political discourse is an important problem, especially in the context of the interference of disinformation in democratic processes. The emphasis on political discourse represents an area where the boundaries between tolerance and freedom of expression need to be drawn. Preventing the spread of harmful content, on the one hand, and tolerance of political expression, on the other, constitute the main axes of the balance to be struck. For example, the nature of the protection afforded to high-level state officials or public servants in the exercise of freedom of expression is another critical issue in addressing how disinformation shapes democratic discourse. Indeed, the impact of disseminated information on the rights of others poses serious challenges, particularly in balancing freedom of expression and protection of reputation. Cancel culture has serious psychological and social effects on individuals and is sometimes used as a tool of censorship. While the act of ostracization can lead to the need for individuals to be forgotten, the need to balance the exercise of freedom of expression with the procedural safeguards of the presumption of innocence and the protection of privacy has been underlined. On the other hand, publicizing the allegations subject to the proceedings may lead to a violation of the principle of presumption of innocence, and in this context, the actions of judicial and administrative authorities without respecting procedural safeguards may lead to violations of rights in various respects. In this context, the balancing role of the legal system is crucial, and an appropriate threshold must be established between freedom of expression and the protection of private life. Procedural safeguards in the legal system are crucial to minimizing the effects of disinformation on democratic discourse. Among these safeguards, the scope of the balancing analysis is particularly noteworthy. The criteria for a fair balance analysis, as set out in the case-law of the ECtHR, are an important method used to resolve the conflict between freedom of expression and the protection of the rights and freedoms of others. In the light of the principle of subsidiarity, it is decisive in this fair balance analysis that the domestic authorities provide adequate and appropriate reasons. Of course, in the balancing analysis, the dynamics of the online environment should be considered, while various criteria come into play. Moreover, the burden of proof and its proper allocation is another safeguard in the fight against disinformation. The impact of fact and value judgments on the burden of proof has an important place in establishing a fair balance in cases where misinformation is disseminated. The basic principles in the case law of the ECtHR, which are discussed through concrete examples in this chapter, are also instructive in terms of the use of mechanisms such as the element of good faith and the defense of truthfulness. The third and final part of the thesis discuss the effects of disinformation on the right to access information and the right to free elections. In democratic societies, the right to access to information ensures that citizens are informed about the functioning of the public sector, thus ensuring the healthy functioning of democratic processes. However, disinformation poses a significant threat to the effective exercise of this right. When the right to access information needs to be balanced between security concerns and the protection of freedom, it can be difficult to share accurate information, especially about the public. Public whistleblowers also play a critical role in combating disinformation. The protection of public whistleblowers is crucial to preventing disinformation. They contribute to accountability and inform the public about irregularities and illegalities in institutions to prevent misinformation and manipulation. In the case of public whistleblowers, the need to guarantee the freedom of expression of members of the judiciary in the context of ensuring trust in the judiciary is also examined. On the other hand, in the context of combating disinformation, the repercussions of interference with information are directly related to access to the internet. Access to the internet, although controversial, is an important component of a democratic society's right to access information, when it is recognized as a right. However, anonymity on the internet opens another controversial area. On the one hand, it is a guarantee that individuals can safely exercise their right to receive and impart information online, but on the other hand, it can also be seen as an obstacle that can lead to impunity and different procedural problems, including jurisdiction in proceedings. In this section, the conditions for the implementation of the right to access to information and the scope of restrictions on this right are evaluated in the light of the concrete principles set out in the case-law of the ECtHR. Restrictions and access barriers to internet access and content are examined within the framework of the principle of legality and judicial procedural safeguards are underlined. On the other hand, other alternative methods of intervention, in particular the application of prohibition orders in the context of access to information, are among the different methods that states and other actors can resort to in the fight against disinformation, and the legal questions raised by these practices are also addressed, and a road map is tried to be drawn for practitioners in the light of basic principles. The last chapter of the third part is devoted to the discussion of issues such as misleading political advertisements, microtargeting methods and personal data protection within the framework of the right to free elections. First, while the right to free elections ensures that individuals in democratic societies can make their choices in a free and fair manner, the fight against disinformation plays an important role in protecting this right. Information disseminated during electoral processes can directly affect individuals' decision-making processes. The protection of the right to free choice must be balanced with freedom of expression, but this balance can be disrupted by the dissemination of disinformation and misleading information. The misuse of technology and the use of techniques to manage public perception and manipulation are major obstacles to democratic participation, especially in electoral processes. The correct and ethical use of technology in this context is important to ensure the credibility of elections. The positive obligations of states in this context have an important place in ensuring the security and participation of democratic processes. While restrictions aim to prevent the spread of disinformation in electoral processes, they should not affect democratic participation but rather strengthen it. On the other hand, developing technology can create advantages for increasing democratic participation, but it can also pose new risks to elections. The misuse of technology can be used to manage public perception and pave the way for the spread of disinformation. AI-enabled tools are being used effectively in information operations, increasing the risk of manipulating electoral processes. Microtargeting has become a technique used to influence the will of voters by using their personal data. This process raises legal regulations in terms of personal data protection and may jeopardize the security of electoral processes. In this context, the impact of microtargeting on electoral processes poses a serious threat to the fairness and freedom of democratic elections. In this respect, looking at the picture, while the fight against disinformation aims at securing the right of access to accurate and healthy information, it also leads to difficulties in balancing the rights of others and freedom of expression, as individuals become not only consumers but also producers of disinformation. On the other hand, it has been observed that the effects of disinformation are a matter of debate not only on issues related to freedom of expression, but also on the right to access to information, which is a component of it, and on the right to free choice, of which it is the cornerstone. Manipulative interventions in election campaigns and the effects of microtargeting on the will of the electorate with the development of technology have also been addressed through international standards and jurisprudence within the scope of human rights. As a result, the thesis demonstrates with concrete examples that the negative effects of disinformation on democratic discourse and participation cannot be overcome solely through regulation. At the same time, it emphasizes that more effective and sustainable methods of combating disinformation must be implemented through cooperation and transparency among all stakeholders. In this regard, the thesis's conclusion highlights that when evaluating interventions targeting fundamental rights in all areas where disinformation affects democratic discourse and democratic participation, a fair balance between conflicting rights is a common denominator. However, while it is considered important to develop a critical perspective among individuals and to establish information literacy at the basic level, given that disinformation is a phenomenon that cannot be eliminated also through legal regulations, it is concluded that the state's responsibility in combating disinformation is a key element from a human rights perspective, and that the fight must be activated in cooperation with other actors.