Note: The views and opinions expressed in blog/editorial posts are those of the author. They do not purport to reflect the views or opinions of Misbar.
Introduction
Voltaire once said that “those who can make you believe absurdities can make you commit atrocities.” In the aftermath of the Rohingya genocide in Myanmar spurred by fake news and hate speech on Facebook, in the midst of the US elections and a new wave of terror attacks in Europe, we are again reminded of the devastating consequences that the spread of fake news can render on modern society, from the spread of hatred rooted in divisive politics, to the vogue of undermining health efforts in the fight against Covid-19. The decentralization of information in the form of the internet, in particular social media, has enabled virtually anyone to become both a publisher and a recipient of news, turning the monopoly that news outlets once enjoyed over public information on its head. Instant communication has allowed for greater access to truth, as well as mistruths.
The advent of social media, such as Twitter and Facebook, has enabled the flooding of disinformation online and legislators, politicians, and civil society actors worldwide have scrambled to find ways to stop its disastrous consequences, including the outlawing of it. To stem the rising influence of fake news, some, mostly authoritarian, countries have made the creation and distribution of deliberately false information a crime. However, there are several questions that need to be answered, including whether it is legal to outright ban fake news, what are the consequences of criminalizing fake news if we do, and where do we draw the line in what is acceptable news to share and what isn’t? Additionally, it raises several human rights concerns.
The danger of fake news online
Fake news, as defined by the Cambridge dictionary, consists of “false stories that appear to be news, spread on the internet or using other media, usually to influence political views or as a joke.” Because of the rapid manner in which fake news spreads, it has the ability to quickly influence millions of people. Posts that we see that are continuously shared are already more likely to be something we agree on because of social media algorithms that calculate outfeed based on our metadata of likes and views. This creates echo chambers of opinion that can lead to fear or hatred over time. It erodes trust between communities, the media and journalists, experts and scientists, and in governments. Once established institutions that the public could trust suddenly becomes wrought with suspicion and conspiracy theories, and this then spirals into the misconception that all users are authoritative speakers on a subject, making their opinion as equally valid as an expert in the field or an investigative journalist. Essentially, it leads to mistrust, fear, and increased gullibility in society. On the other hand, having greater access to truth, however, challenges the power governments have conventionally always had over the flow of information in establishing a narrative.
International law
It is firstly important to point out that human rights fall under international law. Every country is obliged to follow international law, which takes precedence over national law, but some states still enact laws that go against international standards, making it unlawful under international law, but still enforceable in that country, and this can later be dealt with at the UN, other international regional bodies or within domestic courts.
The right to freedom of expression is a human right and is protected under Article 19 of the International Convention on Civil and Political Rights (ICCPR), which is one of the 9 core treaties that make up the human rights framework. Under this article, restrictions are allowed, however, in order for a state to limit the right to freedom of expression, there is a test that needs to be passed, namely, the restriction or ban on information, views, or opinions must be:
- Allowed by national law
- Necessary and proportionate to achieve a legitimate interest recognized under international law
Fake news can be outlawed by a country’s legislation, thus fulfilling the first leg of the test. The trouble is with the second leg. Because the definition of fake news is so ambiguous and vague, a state cannot merely criminalize it because that would be overly broad and indiscriminate, rendering it a disproportionate measure. Also, the legitimate aim that the blanket ban seeks to protect is also vague and broad, thus making such a crime disproportionate in achieving a legitimate aim. A state can however restrict free speech if it serves a legitimate interest that is specific and identifiable to an individual, such as slandering someone’s reputation or threatening someone or a group with violence, amounting to hate speech. This might overlap with cases of fake news, but the notion of fake news itself cannot be outlawed, it can only be mitigated once it enters the public sphere.
The UN Special Rapporteur on Freedom of expression has also emphasized that the “human right to impart information and ideas is not limited to “correct” statements”, and “protects information and ideas that may shock, offend, and disturb”. From this, one can determine that you cannot merely ban information because it is false or offensive as that is protected under free speech. If we begin to outlaw news that we don’t agree with, even if it is not objectively true, then there is great risk in censoring the opinions of others, and this has already been happening online since the creation of the internet.
The Danger of Criminalising Fake News
Fake news has now become a common phrase by politicians in their dictionary of political jargon to legitimize state-directed regulations to censor information online which they do not want in the public sphere. Government authorities have often resorted to responding to the spread of misinformation or disinformation with direct, disproportionate blocking, or throttling, of access to social media platforms. However, this almost exclusively occurs in authoritarian regimes such as in Myanmar, Belarus, Russia, and Egypt with the purpose of silencing political dissidents. Across the globe, states have used the justification of ‘fake news’ in order to crack down on peaceful assemblies, militate online criticism, target whistle-blowers, and to control the narrative. We can see this clearly in the way Nigeria’s army responded to accusations of carrying out the Lekki Gate massacre by labeling such allegations as ‘fake news’ despite strong evidence to the contrary, and several countries and international organizations, including the UN, placing blame on the military. As such, criminalizing fake news is a slippery slope because that would then render the state the arbiter of truth in determining what deserves to be discussed both online and offline.
Such power, without transparency, rule of law, and independent and judicial oversight, would be widely abused by governments in blocking political opposition or public criticism. This has already occurred in multiple states, for example, In 2019, the parliament of Singapore passed the Protection from Online Falsehoods and Manipulation Act (POFMA), commonly known as the ‘Fake News’ Act, which was enacted to target reports of online misinformation and either use fact-checking techniques or target social media sites and block them to counter fake news. However, in 2020 the government used the act to justify the targeting and sanctioning of media outlets that criticized the government’s handling of the Covid-19 pandemic.
Ambiguous prohibitions of fake news effectively empower officials with the ability to determine the falsity or truthfulness of the information in the public and political sphere, in contravention of the requirements of necessity and proportionality of free speech under the ICCPR. Such restrictions must be based on objective and reasonable criteria.
Propaganda and disinformation may deceive populations and interfere with the public’s right to access the truth, however, governments are exploiting fake news to draft and enact laws and regulations that violate the freedom of expression through restricting legitimate speech, especially during elections and emergencies, such as the internet shutdown after the contentious elections of Belarus widely believed to be rigged. They also take the opportunity to manipulate public opinion and charge its base with rhetoric that those that criticize the government or call for democratic values are the real perpetrators of fake news and are thus the enemy of the state, further sowing division. This is clear from the rhetoric of Trump’s Republican party against Democrat protesters during the BLM movement to justify escalated violence.
What should rather be done
The former Special Rapporteur on Freedom of Expression, David Kaye, expressed that the international standard to combating fake news and hate speech is not through the criminalization of it, with steep fines and imprisonment that undermine public debate and the free flow of information, and the imposition of online censorship. Instead, the obligation is to prohibit the advocacy of hate based on discriminatory grounds, which could occur in a myriad of other forms including grassroots societal and tribal dialogues with high-level officials and communal leaders, to regulating social media companies by incorporating algorithms that target and remove hateful rhetoric and rework echo chambers. The recent configuration of social media companies adding a public service message or facts from credible sources to dispel misinformation, which is a growing policy with Twitter, is particularly useful in stopping fake news, particularly when it comes from those with a massive amount of followers, such as Trump.
What is needed is for governments to better engage with the public in understanding and resolving misconceptions such as the fear of vaccinations leading to autism, through educational programs. Furthermore, governments need to work with social media companies to also participate in both public advocacy and the labeling of posts as fake news, with a redirect to a fact check website, such as Misbar, to get a better understanding of the situation.
Conclusion
In summary, fake news can and is banned by certain governments through the law, however, this goes against international law and norms. Being able to voice opinions and views that are not necessarily true is protected under free speech, what is not protected is when it harms a specific legitimate interest recognized under international law, such as hate speech or slander. Who is to be held accountable, however, is another legal matter which falls outside the scope of this post. What is important to note is that the concept of fake news is protected and if governments were to begin banning it, then it would be a slippery slope towards systematic censorship. Social media companies need to take more responsibility and work with civil society actors, and other organizations such as fact-checkers, introduce educational programs on spotting fake news and more specifically review the algorithms that create echo chambers of opinions and hate. Free speech must be protected but that does not mean that we are helpless to prevent the harmful impacts of fake news from occurring, by means other than the law.
