Eskens, Sarah

English

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Regulating News RecommenderSystems in Light of the Rule of LawSarah Eskens 2022-03-31T09:57:42Many online services – search, e-commerce, movie streaming, social media, andnews – use recommender systems. Recommender systems are software programsthat select items out of a bigger pool of items and then recommend these to users ofonline services. In this contribution, I focus on personalised recommender systems,which recommend different items to different individuals based on information aboutthe individual.I argue that it is largely unnecessary and, in any case, contrary to the rule of law toregulate how news media deploy recommender systems to select and rank the newsfor individual users. Instead, I consider an alternative for state regulation of newsrecommenders, should empirical research show that certain news recommendersystems have harmful effects on individual rights and societies.Democratic Role of News MediaThe use of recommender systems by online news media is a particular case.News media are a cornerstone of democratic societies. They publish informationon matters of public interest, act as a public watchdog over public bodies andpowerful companies, and provide a forum for public debate. A well-functioningmedia sector contributes to the rule of law. At the same time, the rule of law requiresmedia freedom. In this context, I distinguish news media from social media. Peopleincreasingly find news via social media, but these media are fundamentally different.News media produce and publish news themselves and exercise editorial controlover the content they distribute, while social media only repost news producedelsewhere. Social media do not have media freedom, and the comments in thiscontribution apply solely to news media, not social media.Online news media use recommender systems for commercial and journalisticgoals. They try to obtain and retain subscribers with personalised recommendersystems, while competing for attention with social media and other online platforms.In addition, news media, especially public service media, use recommender systemsto realise journalistic ambitions of serving varied audiences and providing individualswith the news they need to become informed and critical citizens.News recommender systems create opportunities and risks for individuals andsocieties. These personalised systems may help individuals find the news that isimportant to them and navigate the online information overload. At the same time,news recommenders’ risks for individuals include a loss of privacy and autonomyin making news choices. On a societal level, there are fears around filter bubblesand a decline of media diversity, an increase of polarisation, and the amplification- 1 -of disinformation, which could have even more harmful effects when recommendedto individuals who are specifically susceptible to false and fabricated information.While empirical research consistently shows that filter bubbles are much smaller andless prevalent than is commonly thought, news recommenders’ effects do warrantattention, seeing the news media’s democratic role.Media Freedom Limits News Media RegulationIf news recommender systems are responsibly designed, implemented, andoptimised, they can be used to benefit news media and audiences with limited risksfor individuals and societies. Laws might help to ensure responsible recommendersystems. For example, the European Commission’s proposal for a Digital ServicesAct (‘DSA proposal’) imposes an obligation on very large online platforms that userecommender systems to provide transparency about the main parameters used intheir recommender systems and the options for individuals to modify or influencethose parameters (article 29 of the DSA proposal). In the first reading of the DSAproposal, the European Parliament even included an obligation for very large onlineplatforms that use recommender systems to provide at least one option for contentpresentation not based on profiling.However, article 29 of the DSA proposal would not apply to news media, since thedefinition of ‘online platform’ does not cover them. Moreover, transparency only goesso far. Scholars have therefore commented that the DSA proposal should oblige verylarge online platforms to prioritize quality content.A similar obligation, to prioritize specific types of content, cannot be imposed ononline news media that use recommender systems. The rule of law requires mediafreedom. Any kind of regulation of news media should avoid restricting mediafreedom. Regulating by law how online news media use recommender systemswould entail regulating how they select and present their news, which directlyinterferes with media freedom.A Need to Regulate News Recommenders?The principle of media freedom raises issues for the use of recommender systemsby online news media. How can news users’ interests and fundamental rights beguaranteed, and how can public values be preserved if media freedom limits mediaregulation, specifically around decisions on what type of content to offer and how?This question requires differentiation between public service media and commercialmedia. Commercial media, be it printed, broadcast, or online media, are notregulated in their decisions what stories to investigate, how to report on thesestories, and which stories go on the front page. Nevertheless, these news media aresubject to self-regulation. They adhere to journalistic codes of ethics and organisein press councils and are guided by strong ethical values, differentiating themfrom social media and other online platforms that are not led by similar standards.Many news media are highly aware of the risks of recommender systems, and not- 2 -interested in building addictive services, where news users spend all day. Most newsmedia use personalised recommender systems only on parts of their website or appto prevent filter bubbles. For instance, the mobile app of the Dutch news serviceNU.nl has three main sections in the bottom bar: ‘Front page’, ‘Just in’, and ‘My NU’.The app opens on ‘Front page’, where everyone sees the same news, while the ‘MyNU’ section provides personalised recommendations. NU.nl wants ‘to be the placefor everything you should know and everything you want to know. What you shouldknow is what our editors believe is important, regardless of your interests […] Whatyou want to know ties in to your interests’. The mission of providing quality content tonews users and providing them with societally relevant news is at the heart of mostnews media, who might not need an explicit legal obligation to develop responsiblenews recommenders.Public service media are regulated by national media laws. These laws usuallyformulate a remit for public service media to offer diverse and quality content.Thereby, these laws provide public service media an orientation point to decide whatcontent to produce and how to distribute this. National legal provisions formulatethe objectives for public service media on an abstract level, without the legislatordictating precisely what kind of content public service media can and cannot produceor what news goes on the front pages. Besides provisions on the public servicemedia’s remit, national media laws mainly regulate their structure, organisation,funding, and supervision. Public service media that use recommender systemsare guided by their remit, formulated in national media laws, and, like commercialmedia, by journalistic codes of ethics. These norms and standards could be enoughto ensure that public service media’s recommender systems are oriented towardsfundamental rights and preserve public values. For example, the BBC in theUnited Kingdom strives to ensure that their recommendations ‘reflect the breadthand diversity of our content and meet our editorial guidelines’ and are ‘informing,educating and entertaining’.The above is not to say that recommender systems do not create challenges forpublic and commercial media. News media should update journalistic codes ofethics to the online environment, with more attention for the use of personal data,recommender systems, and other technologies such as artificial intelligence. Publicservice media need to ask how to translate their remit and values into recommendersystem design. Commercial media need to ensure financial motives do not lead intheir recommender system choices. Still, it might be unnecessary and would, in anycase, be contrary to the rule of law to regulate how news media use recommendersystems to select and rank the news.Supporting Instead of Regulating the News MediaSectorEven though many news media responsibly use recommender systems, not allnews media fit this optimistic view. Some are less guided by journalistic ethicsand more by profit. Tabloid-like media thrive on publishing sensational news andothering people. Mainstream news media sometimes play a role in spreading mis-- 3 -and disinformation or (unwittingly) boost false content created by other accounts.Europe is also seeing a rise of highly partisan news media, which influence howcitizens view the political system and are linked to low trust in mainstream media.When these kinds of news media use recommender systems, the risks for individualrights and societies at large may increase. For instance, the German tabloidnewspaper Bild has a fully personalised app called BUZZ. What is the effecton BUZZ users and their communities if they receive mainly personalised newsrecommendations via their mobile app, on topics such as the current covid-19pandemic, German and international politics, and recent crimes? At the moment,we simply do not know the consequences of citizens mainly receiving newsthrough recommender systems on tabloid or partisan news media, or media outletscontaining disinformation. On the one hand, while filter bubbles are limited, asmentioned above, empirical research suggests that news recommenders can leadto selective exposure. If people are consistently exposed to news that confirmstheir views, they may become less tolerant to other views or groups. On the otherhand, people usually use multiple news sources. The harmful effects of tabloidnews recommender systems may be compensated by other, better news sourcesthat citizens use, including public service media. Before law and policy makerstake steps, we should empirically research whether recommender systems on lessresponsible news media threaten individual rights, democratic debate, and socialcohesion.If empirical research leads to the conclusion that news recommender systems on“less responsible” media should be addressed, the question is how to do so whilerespecting media freedom, which is crucial for the rule of law. In any case, thequestion of which media are less responsible than other media should be left tonews users and the news sector themselves. It would infringe media freedom if thestate made such a determination, and media freedom means we cannot subjectsome news media to regulation and others not. Likewise, standards of journalisticethics and responsible news recommenders should be developed and enforced bythe news media sector, not by the state.One solution could be to support the news media sector instead of regulating newsmedia and their recommender systems. We can take inspiration from approachessuggested to counter disinformation while respecting media freedom and freedomof expression. For example, the EU High Level Group on fake news and onlinedisinformation recommended to fund independent quality news media and publicservice media as an antidote to disinformation spread by less trustworthy newsmedia.Financial support to sustain a reliable news media sector also contributes to therule of law in two ways. First, financial support for trustworthy news media, tocompensate for harm done by recommender systems on less responsible media,avoids direct regulation of news media and how they use recommender systems.Such regulation would interfere with media freedom and thereby diminish the ruleof law. Second, if news media have the means to develop recommender systemsthat can compete with recommender systems used by social media and otheronline platforms, these news recommenders could facilitate the media in exercising- 4 -its democratic role of informing citizens on matters of public interest. As such,responsible news recommenders may positively contribute to the rule of law.- 5 -

Regulating News Recommender Systems in Light of the Rule of Law

Many online services – search, e-commerce, movie streaming, social media, and news – use recommender systems. Recommender systems are software programs that select items out of a bigger pool of items and then recommend these to users of online services. In this contribution, I focus on personalised recommender systems, which recommend different items to different individuals based on information about the individual.I argue that it is largely unnecessary and, in any case, contrary to the rule of law to regulate how news media deploy recommender systems to select and rank the news for individual users. Instead, I consider an alternative for state regulation of news recommenders, should empirical research show that certain news recommender systems have harmful effects on individual rights and societies

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