Fake news legislation and their implications in digital space: Human Rights-based analysis
by Bodhisattwa Majumder
The outbreak of COVID-19 has witnessed an unprecedented sharing of false information ranging from discovery of vaccines to false outbreaks, which has caused chaos, hatred and fear among people. With the advent of technology, a legislatory framework to have a cyberspace regulated by a governmental authority to recognise, authenticate, and regulate online activities is essential. However, the drafting of such a legal framework poses a magnitude of problems which can encroach upon the human rights of the individuals. It must be ensured that while dealing with such laws, the legislation must strike a balance between protection of cyber space and ensuring freedom of expression . Cyber laws should exist for the protection of the citizens and not as a tool of government to monitor the actions of citizens and restrict the dissent. In the age of cyber protests, where dissent can be expressed by online solidarity, using governmental machinery to curb dissent by placing them under the bracket of fake news could be anti-democratic as well as anti-human rights.
The objective of cyber laws
Under the United Nations Human Rights Council, the right to freedom of expression and information also extends to cyberspace, which includes the freedom to receive and communicate information, ideas and opinions through the internet. The objective of the Cyber laws should be limited to providing cyberspace as a safe haven for citizens to store, transmit, share and access information without the fear of interference. However, these rights are not absolute and can be lawfully restricted in pursuance of a legitimate objective such as providing security in terms of economic, health, moral and national interest. Curbing misinformation in the cyberspace has a legitimate objective as misinformation in recent times of outbreak has caused health hazards, communal hatred and frauds. However, the veracity of the news cannot be verified in every case unambiguously, especially in cases of opinion and statements. This ambiguity provides a leeway to an authoritarian state which can exploit the grey area and define it according to its need to supress dissent, which is the root cause of legitimising the human rights violations.
Fake news laws and human rights violations
The news’ spread through the various social media and instant messaging apps has been exponential and convenient as it lacks the regulatory framework of the print or broadcast media. In recent years, several states have adopted laws which criminalise the spreading of false information, which have been protested and held as violative of human rights. The laws provide a leeway to the government to define ‘what is false/fake news; which forms the base to control online platforms. Also, the definition of ‘fake’ is vague, and can be moulded according to the will of the ruling government. This tool of curbing fake news can be used by the ruling government in restricting freedom of expression, identifying whistle-blowers, suppressing dissent and raising propaganda. Anything could potentially be characterised as fake news by vague terms such as ‘disrespect towards the state’, ‘in the interest of public order’ and ‘anti-national sentiments’.
Several countries including Germany, Malaysia, France, Russia and Singapore have enacted laws to restrict spreading of false information. Singaporean law provides powers to government ministers to define what is fake news and the authority to remove content from online platforms if they deem it ‘against the public interest’. This also enables the government to exercise control over information shared by dissenting population, which has been heavily criticised by the Human Rights Groups. The Malaysian government has criminalised the spreading of fake news and imposed penalties up to five hundred thousand ringgit (93,112.52 £) or six years of imprisonment. The Russian government has placed a blanket ban on fake news and has defined it as ‘blatant disrespect for the state’ which can invite a sentence of fifteen days. This terminology blatantly lays down a tool against dissent, which can be used to curb any activity ranging from posting a disagreement towards state action to whistleblowing as ‘disrespect’. Germany’s legislation against fake news places every social media handle under its jurisdiction and with a sky-high fine of Fifty Million Euros.
The governments of these states have also expressed the inability to control the implications of such legislation and provided assurances to review it. While the German government has admitted that too much information is blocked unnecessarily, and the Malaysian government had promised to repeal it, however any step is yet to be taken.
Striking the balance
While the legislation curbing fake news are prima facie appear benevolent, the major problem in their implementation lies threefold. Firstly, what can be deemed as fake; Secondly, who can determine the fake information; and Thirdly, which areas can be subject to these laws without compromising the objectives.
Addressing the first question, the problem can be sufficiently curbed by having clear, unambiguous and specific legislation. Use of ambiguous terms provides leeway to the ruling party to use the law to their advantage and curb any dissent or disagreement towards its actions. Now, the third question is pertinent in this situation and the priorities of the legislation keeping in mind its objective needs to be specified in black letters of the law. Various areas which deal with objective ‘factual data’, such as statistics, medicine, physics, economics et al. which can be classified into water-tight compartments of right and wrong can be regulated by these legislations without raising any ambiguities. However, subjective areas such as politics, public policy or legal opinion which deal with an opinion which is based on experience, theory, or the ideology of the person which cannot be segregated into true or false are not suitable for fake news legislations. Lastly to answer the second question, it is probably in the best interests of the public that this power of defining a ‘fake-news’ is regulated by bodies which are apolitical in nature. A balance between serving the interests of the public by curbing false information and providing the freedom of free online speech is the need of the hour.