- The 2016 US Presidential Election placed a spotlight on “fake news” and the ease at which disinformation can be disseminated, particularly online.
- In response, a number of countries have enacted legislation criminalising fake news. However, current legislation does not strike an appropriate balance between criminalising fake news and protecting the right to freedom of expression.
- The recently published Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda, a recent decision of the ECOWAS Court of Justice, and the Final Report of the High Level Expert Group of the European Commission on Fake News and Online Disinformation give guidance on how to limit the harm caused by fake news while creating a diverse environment in which the rights to freedom of expression, media freedom, and media pluralism can thrive.
Framing the current context
The concept of ‘fake news’ obtained significant infamy during the 2016 Presidential Election in the United States. It was a stark example of the ease with which disinformation could be widely disseminated, and the tangible impact that this could have on the credibility of elections and matters of public concern. In the age of social media when mass publication is literally a click away, the spread of information – including disinformation, whether done intentionally or not – requires little more than a device with an internet connection. This can be done by both state and non-state actors, and it is often characterised by an intention to mislead.
Since the US Presidential Election, there have been various efforts to regulate disinformation and fake news. For instance, in advance of the upcoming mid-term elections in the United States, Facebook has announced the steps that it plans to take to protect election security, with reducing the spread of false news being identified as one of the four main election security areas being worked on. Furthermore, a number of countries have recently proposed laws aimed at outlawing fake news, with Malaysia having this week passed the Anti-Fake News Bill in Parliament, that would allow for offenders to face up to six years’ imprisonment. South Africa too has proposed legislating on this issue through section 17(2)(d) of the Cybercrimes and Cybersecurity Bill, which is targeted at information that is inherently false in nature and carries a penalty of a fine and/or imprisonment not exceeding three years.
These efforts to regulate fake news present a myriad of challenges. Most importantly, it is essential to ensure that any such regulatory effort strikes an appropriate balance with the right to freedom of expression. As has been seen in the past, the crime of publishing false news may be used by governments against the media to quell criticism and dissent, in blatant violation of the right to freedom of expression.
One of the key challenges is of definition. While the terms ‘fake news’ and ‘false news’ are often used interchangeably, the arguably more accurate nomenclature now leans towards the intentional dissemination of ‘disinformation’. In particular, this is targeted at the dissemination of knowingly or recklessly false, inaccurate or misleading information. However, the right to impart information and ideas, protected under the right to freedom of expression, does not only protect statements that are correct, it also protects information and ideas that may shock, offend and disturb.
The right to impart information and ideas, protected under the right to freedom of expression, does not only protect statements that are correct, it also protects information and ideas that may shock, offend and disturb.
In 2017, the Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda (Joint Declaration) was published by the freedom of expression mandate-holders for the United Nations, the African Commission on Human and Peoples’ Rights, the Organization of American States and the Organization for Security and Co-operation in Europe. Of particular relevance, the Joint Declaration laid down the following standards:
“Standards on disinformation and propaganda
- General prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression, and should be abolished.
- Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.
- State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).
- State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.”
The Joint Declaration noted further that states have a positive obligation to promote a free, independent and diverse communications environment, including media diversity, which is a key means of addressing disinformation and propaganda. Two of the concrete proposals offered in the Joint Declaration are for states to put in place other measures to promote media diversity, such as providing subsidies or other forms of financial or technical support to produce diverse, quality media content; and for states to take measures to promote media and digital literacy, including by covering these topics in the school curriculum. The Joint Declaration also called on media outlets to, amongst other things, consider including critical coverage of disinformation and propaganda as part of their news services and in line with their watchdog role in society, particularly during elections and regarding debates on matters of public interest.
Building on the work contained in the Joint Declaration, there have been two important recent developments in respect of fake news. The first relates to the judgment of the Court of Justice of the Economic Community of West African States (ECOWAS Court) in the matter of Federation of African Journalists and Others v The Republic of The Gambia. The journalists cited as plaintiffs in the matter argued that, as a result of them conducting their professional work, they were unlawfully detained, arrested and tortured by officials of The Gambia, and that it had become practically impossible for them to freely disseminate information for public interest in the country. One of the legal provisions relied on by The Gambia to arrest and detain the journalists in question was section 59 of the Criminal Code, read with section 181A, which related to false news. Section 59 of the Criminal Code provided as follows:
[A] person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false, commits a misdemeanour and is liable on conviction to imprisonment for a term of two years.
The plaintiffs argued that as the possibility of error in journalistic work cannot be avoided, the existence of criminal liability for such errors would impede the right to freedom of expression. In a landmark judgment that will have a far-reaching impact on other similar laws across the region, the ECOWAS Court agreed with the plaintiffs and upheld the claim. As stated in the judgment: “A reading of [section 59 of the Criminal Code] espouses expressions of inexactitude which are also so broad as to be capable of diverse subjective interpretations. It indeed amounts to censorship on publication. The jurisprudence of freedom of expression suggests that the erosion of freedom of expression by indirect means as [section 59] seems to have done suggests that a finding of violation is obvious.”
The ECOWAS Court went further to hold that the practice of imposing criminal sanctions on false news, sedition, criminal libel and defamation has a chilling effect that may unduly restrict the exercise of freedom of expression of journalists, and cast an excessive burden in violation of the right to freedom of expression contained under international law. As such, the ECOWAS Court directed that the legislation on false news, sedition, criminal libel and defamation of The Gambia must be reviewed and decriminalised to be in conformity with the international provisions on freedom of expression under the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.
The second notable development has been the finalisation and publication of the Final Report of the High Level Expert Group of the European Commission on Fake News and Online Disinformation (Final Report) in March 2018. The Final Report uses the term ‘disinformation’, which it defines as all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit. It excludes from its ambit issues arising from the creation and dissemination online of illegal content (such as incitement to violence), as well as other forms of deliberate but not misleading distortions of facts (such as satire and parody). As noted in the Final Report, the deliberate choice to avoid the use of the term ‘fake news’ is two-fold: first, because the term is inadequate to capture the complex problem of disinformation, which involves content that blends fabricated information with facts; and second, because the term is misleading, as it has been appropriated by some politicians and their supporters to dismiss coverage that they find disagreeable, and has thus become a weapon with which powerful actors can interfere in the circulation of information and attack and undermine independent news media.
The term [fake news] is misleading, as it has been appropriated by some politicians and their supporters to dismiss coverage that they find disagreeable, and has thus become a weapon with which powerful actors can interfere in the circulation of information and attack and undermine independent news media.
The main message of the Final Report is that the best responses to disinformation are multi-dimensional, with stakeholders collaborating in a manner that protects and promotes freedom of expression, media freedom, and media pluralism. The Final Report contains a number of recommendations over the short-, medium- and long-term. In the short- to medium-term, a key recommendation is the establishment of a coalition representing online platforms, news media organisations (both print and broadcast) and civil society organisations with experience in fact-checking, as well as other willing stakeholders from relevant sectors. One of the identified tasks of the coalition would be the development of a multi-stakeholder Code of Practices, that would set out concrete rules of conduct regarding the role to be played by platforms, news media and fact-checking organisations to protect an enabling environment for freedom of expression, while fostering the transparency and intelligibility of different types of digital information channels.
For the longer-term, the Final Report calls on states to sharpen actions in support of media and information literacy for all citizens, including integrating media and information literacy in teacher training and national curricula requirements, and to step up funding of activities to improve the long-term sustainability of a pluralistic news media landscape, such as through VAT exemptions or other types of tax breaks, or through targeted forms of aid for news production. The Final Report also calls on civil society organisations, platforms and news media organisations to develop tools and programmes, with due regard to age-specific media, to raise awareness about digital disinformation and emerging findings about digital risks.
Both the judgment of the ECOWAS Court and the Final Report make it apparent that the dissemination of fake news or disinformation presents complex and multi-faceted challenges. While this may not always be illegal, it may nevertheless have harmful consequences. In the digital age, where the internet amplifies audiences, these consequences may have wide-ranging impacts on various sectors of society. The challenge of finding solutions is exacerbated by the fact that there is no single cause, platform or actor that can be identified at the root of the problem.
It is imperative that, in whatever solutions are pursued, censorship must be avoided. Any regulatory and policy responses – which should in any event be kept to a minimum to avoid political policing of what is and is not acceptable speech – must contain clearly-defined principles that ensure due process, accountability and proportionality. Coupled with this, technology companies and other stakeholders should also ensure better transparency, including in respect of their algorithms and advertising practices. Ultimately, however, the goal is to empower users to be able to make informed assessments of the news with which they are presented, through digital literacy and counter-narratives. Quality information that dilutes the disinformation at the outset can go a long way in mitigating the harmful consequences of fake news.
Avani Singh is a Director and Co-founder of ALT Advisory.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].