Marco Antonio Loschiavo Leme de Barros,
Mackenzie Presbyterian University, Brazil
Lucas Fucci Amato
University of São Paulo, Brazil
How can we understand the intense transformations caused by fake news in politics and law? One possible approach discussed in our co-authored article, Fake News in Brazil’s 2018 Presidential Elections is the observation promoted by the contributions of social systems theory. This is a theory that mobilizes the concept of communication as the basic element of society and its social systems (such as law, politics and the mass media). The problem of fake news brings these three social systems (law, politics and the mass media) into friction. State law – as a coupling between the national political system and the legal system – then needs to build its regulatory responses to a system that is foreign to it (the information system, i.e. mass communication), but whose impacts spill over into questions of legitimacy (political) and justice (legal).
The effectiveness of fake news is drawn precisely from the potential of confirming (false) information to generate an appearance of plausibility and have repercussions as if it were true. Related instances of second-order observation in communication – such as fact-checking agencies – are also discredited, along with the traditional media, so that the production of “narratives” is always seen as suspect. The dynamics of fake news seem to gain strength within the digital routine of constant bombardment of information which, at the same time, reiterates consolidated narratives in each group or “subculture” (in this case, political subcultures). As a result, “bubbles” are formed that reinforce views of reality in their own self-sustaining structures, uniting allies against “enemies”, exerting pressure on democratic public opinion and thus jeopardizing the culture of tolerance and debate.
This problem has become more evident in Brazil’s electoral processes. Electoral fake news is a complex and multifaceted phenomenon, involving and overlapping new legal, technological, economic and political issues all the time. The main difficulty for the legal system is to remedy the possible misleading effects of fake news during the fleeting but crucial electoral period. To this end, our paper discusses how fake news is part of a rhetorical strategy to oppose the “elites”, the “old politics”, or the “mainstream media”. The term “elites” is often used today in a general sense to indicate “power groups”, such as in the political or financial sphere, and in opposition to another banalized term: “people”. The risk is precisely that of using “populist” rhetoric. Thus, in the broader political context, the massive dissemination of fake news is part of a larger strategy of deinstitutionalization.
Moreover, our article addresses how new structural transformations in the way the law can be observed to deal with fake news during elections, which can be largely understood as forms of regulation of digital technologies. The legal regulation of digital technologies, especially, poses a challenge for the learning of the legal system for at least three reasons. From a social perspective (i), phenomena such as fake news (massive dissemination of disinformation and misinformation) and technologies such as artificial intelligence and big data analysis have repercussions in multiple areas of society: not only in politics, economy and law, but also in healthcare, education, science, religion, etc. In terms of time. (ii) The challenge concerns the novelty of both the exponential process of digitalization of communication in society (permeating learning, working, investing, and a variety of decision-making arenas) and the technological evolution of digital platforms, social networks, private messaging services, and the decision-making and data-analytic computational systems. Recalling expertise to manage new media and its economic deployments, technological evolution spills over the established juristic knowledge. Finally (iii), the issue involves technologies under the transnational dominium of global monopolies or oligopolies, thus posing challenges to the scope of state law.
A set of strategies for regulatory learning can be observed throughout the legislation and case law recently designed to cope with emerging digital communication and technologies – including the European bills (General Data Protection Regulation, 2018; Digital Markets Act 2023, and Artificial Intelligence Act, expected to have its final approval in the beginnings of 2024), UK’s Online Safety Act 2023 and many other statutes, such as the German Network Enforcement Act (NetzDG, 2017) and the Brazilian Internet Bill of Rights 2014, General Law for Personal Data Protection 2018, and draft bill on Fake News, under discussion in the National Congress since 2020. With their many and important differences, these statutes, drafted over the last decade, show firstly, how a deep reliance on principled norms (instead of on the definition of rules, with clear hypotheses of incidence and due consequences) allows for greater adaptability of legislation, and informs the creation of legal microsystems that evolve and become more complex. At the same time, however, such indeterminacy also generates uncertainty about what conduct is illicit, which sanctions are applicable, and when this will in fact be defined by legislation, regulation or case law. The definition of principles tends to transfer discretionary power to the administrative authorities or, in their absence, directly to the judicial authorities, overloading the judiciary.
A second legislative strategy is ‘cognitivisation’. In autopoietic systems theory thinking, law is reproduced especially on the basis of normative expectations (Luhmann 2014), and the resistance of these expectations to counterfactual situations. As a consequence, counterfactual norms reinforced by sanctions, formalised in decision-making programs and imposed by procedures. may gain a high factual density, that is, a higher dependence on evidentiary and proof issues and/or expert knowledge.
A third regulatory strategy is ‘peripheralisation’. In terms of social systems theory (Luhmann, 2004), the legislative branch is the centre of the political system, since it makes collectively binding decisions. However, the legislature is at the periphery of the legal system, since it is not the organisation that gives the last word – that makes the decision – in a concrete case. The judiciary is the branch constrained by the prohibition of non liquet, and therefore occupies the centre of the legal system. Now, in the absence of legal definitions or well-defined rules, just as the judiciary (at the core of the legal system) refers normative definitions to the legislature, the legislature – a peripheral organization of the law, but central in the political system –tries to refer the definition of digital law content to the periphery of the political system, where not only political parties, but also academics and experts, social movements (including Internet and digital law movements), and interest groups (including digital platforms lobbies) are located. Not only is there the regulatory difficulty of new technologies, but also that of the search for support outside the state, which marks its opening to ‘civil society’ participation.
A fourth regulatory strategy is ‘proceduralisation’, based on ‘reflexive law’ (Teubner, 1983): state law moves towards the creation of norms that institutionalize an opening to other sources of law (non-state orders), and to self-regulatory instances – that is, of private creation of law.
A fifth regulatory strategy concerns experimental regulation and experimental regulatory frameworks (‘sandboxes’). This strategy can be found in the topic of the “fintechs”, and similar financial markets and services driven by digitalisation, but which is now being applied to draft artificial intelligence regulation. In sum, the risks and uncertainties emerging from new technologies and products, including financial services, make it difficult to impose complete, detailed legislation for start-up companies; because this would create a high barrier to their entrance in the market. On the other hand, it is necessary to protect consumers, and society in general, from the systemic risks and dangers coming from new markets. The solution provided is a kind of temporary and conditional regulatory package applied to new firms, with a progressive complexification of legal duties and liabilities in parallel to the maturation of the company.
A key insight from systemic sociology is the evolution of the legal communication process. This specialization becomes evident when tackling the challenges of consensus-building on fake news control and decision-making in society. Hence, the state legal system has adopted several regulatory strategies to address this issues that we called “principalization”, “cognitivization”, “peripherization” and “proceduralization”. These dynamics bring inherent risks. As the legal system becomes more open to technical criteria and factual matters, its normative depth may be reduced, potentially compromising its ability to generalize counterfactual expectations effectively. It is crucial to balance these risks with the justifications of the chosen regulatory strategies- that includes the ability to develop appropriate regulations for digital communication that evolve alongside the digital media sector. This approach relies heavily on adaptability, knowledge, and support, which are limited in a purely state-driven, top-down regulation model. Such a model, with its rigid, predefined rules and reliance on the slower, formal processes of legislative lawmaking, may not be as effective in the fast-paced digital realm.
More by these authors
Barros, Marco Antonio Loschiavo Leme de, Amato, Lucas Fucci, Saba, Diana Tognini and Ponce, Paula. Fake News in Brazil’s 2018 Presidential Elections: A Systems Theory Approach to Judicial and Legal Responses. Social & Legal Studies 32(1) (2023): 116–138.
Campilongo, Celso Fernandes, Amato, Lucas Fucci and Barros, Marco Antonio Loschiavo Leme de (eds.). (2021) Luhmann and Socio-Legal Research: An Empirical Agenda for Social Systems Theory. London: Routledge, 2021.
Fonseca, Gabriel Ferreira, Amato, Lucas Fucci and Barros, Marco Antonio Loschiavo Leme de (eds.). (2023) Contemporary socio-legal studies: empirical and global perspectives. São Paulo: Faculdade de Direito, Universidade de São Paulo.
Barros, Marco Antonio Loschiavo Leme de, Amato, Lucas Fucci and Fonseca, Gabriel Ferreira (eds.). World Society’s Law: rethinking systems theory and socio-legal studies. Porto Alegre: Fi, 2020.
About the authors
Marco Antonio Loschiavo Leme de Barros is Assistant Professor at the Mackenzie Presbyterian University Law School and at the Pontifical Catholic University Law School, both from São Paulo, Brazil.
Lucas Fucci Amato is an Associate Professor at the Department of Jurisprudence and Philosophy of Law, University of São Paulo Law School, Brazil. He was a visiting researcher at the Universities of Cambridge, Oxford and Harvard. This work was supported by São Paulo Research Foundation.
Bibliography
Luhmann N (2004) Law as a social system. Oxford: Oxford University Press.
Luhmann N (2014) A sociological theory of law. 2nd ed. New York: Routledge.
Teubner G (1983) Substantive and reflexive elements in modern law. Law & Society Review 17(2): 239-285.
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