Which country launched fake news

Péter Nádori
What can the jurisprudence do against fake news?

The calls for new legal regulations in the fight against so-called fake news are getting louder. A double-edged sword: regulations can protect media consumers from being exposed to disinformation. But there is also the risk that those in power will use them to silence and criminalize critics. Therefore, instead of the content, the attention of the jurisprudence should be on the tools and methods of spreading fake news.

According to Google search data, until the day of the US presidential election in 2016, hardly anyone in the world was interested in the term fake news. After Donald Trump's election victory, that changed suddenly - not only in the United States or in the United Kingdom, which was shattered by the Brexit referendum in June 2016. Between December 2017 and December 2018, the most frequent googles in Brazil for the keyword fake news; Singapore, the Philippines, Italy and Malaysia were also among the top ten countries in the ranking.
One generally speaks of fake news when in the service of a specific, current political goal - usually influencing elections - content that can be classified as disinformation is published in large quantities on various websites with an often unclear background or in social networks (Facebook, Twitter) become.

State crackdown on fake news

In the course of an investigation into the phenomenon in the summer of 2018, a committee of the British Parliament found that fake news is jeopardizing the foundations of democracy. (It is noteworthy that a few months later the government there stipulated that in official documents instead of the insufficiently defined expression fake news the expression disinformation must be used.) Fake news is viewed equally critically by politicians, experts, journalists and voters in large parts of the world.
According to the American Poynter Institute, governments and parliaments in thirty-five countries had taken action on fake news by October 2018. In some places campaigns to promote media literacy have been started, in other places central action groups have been set up to uncover potential attempts to influence elections from abroad. At the same time, legal norms have been - or are currently being drawn up - in several countries that prohibit the publication or dissemination of misinformation and make it a criminal offense.

Is it about protecting credible information or blocking criticism?

In July 2018, the French parliament passed a new legal norm that will make it easier for the authorities to obtain judicial authorization to block manipulative and deliberately misleading content during the election campaign. The initiative came from President Emmanuel Macron and sparked violent protests from the opposition and the media. Critics see it as merely an instrument that enables the government to censor public discourse.
Autocrats and radical populists often denounce the growing spread and the harmful nature of fake news. At least fifteen different “despots” have already followed the example of US President Donald Trump by classifying (de) reports about the abuses in their exercise of power or the opposition press as fake news. In numerous countries, citing the need for protection against fake news, legal norms have been passed, behind which their opponents suspect a different goal: the eradication of information from the public that is unfavorable for those in power.
Most legal systems also previously had means of dealing with the spread of reports threatening national security. However, under democratic conditions in times of peace, these are usually very rarely used. The new legal instruments of the “fake news age” often build on these earlier solutions.
According to statistics from the NGO Committee to Protect Journalists (CPJ), 21 professional journalists worldwide were imprisoned in 2017 because of a legal norm that makes the publication of fake news a criminal offense.
In Egypt, human rights activist Amal Fathy was sentenced to two years conditional imprisonment in September 2018 for spreading fake news after posting a video on Facebook protesting sexual abuse. Before the verdict, Fathy had been in custody for nearly five months. In October 2018, the author and editor of a book criticizing the government's economic policies was arrested on the same charge.
In Malaysia, it was a Danish national who was the first to stand trial on charges of spreading fake news on the internet. At the trial, the defendant testified that he had made a mistake when he posted the information - which he ultimately described as false - that the police had arrived late at the scene of an attack on YouTube.

The limits of freedom of information

The most common argument against legal norms that threaten the activities of authors and platforms with punishment is that in a democratic legal system the state or the government should not decide what is right and what is not. Where the government is given the opportunity to choose between news items at the content level and to classify certain publications as acceptable to society and others as harmful, there freedom of information and publication is at risk.
However, this basic principle is not absolute even in the most liberal democracies. In cases that are considered to be exceptional and / or particularly serious, almost everywhere the state takes action against certain publications “in the service of the general interest” - for example inciting violence or hate speech. The state also sanctions the publication and dissemination of misinformation through civil law by providing legal protection to those who are alleged to be falsehood. Legal norms against fake news are therefore not unprecedented. Whether the threat posed by fake news is an exceptional case that warrants control or government intervention is a matter of interpretation.
The advocates of freedom of expression do not always disapprove of legal action against fake news. In the Philippines, for example, the opposition proposed a law that would penalize the dissemination of fake news by officials. The - quickly rejected - legislative proposal was of course directed against populist President Duterte, who is criticized for spreading fake news himself.
The US special prosecutor Robert Mueller investigated the possible influence of the Russian government on the Trump campaign in 2016. In February 2018, Mueller brought charges against thirteen Russian citizens. They were accused of manipulating American voters on social media for the Internet Research Agency.
The Indonesian authorities partly used the results of an investigative research carried out by the liberal British daily The Guardianin April 2018 to dig up an online Islamist terrorist organization that was accused, among other things, of inciting hatred and destabilizing the country using fake news. The police arrested fourteen people.
The last two examples show that, in many cases, no new legal norms are necessary for taking action against a certain type of fake news: The US public prosecutor and the Indonesian police carried out their work without further ado on the basis of the existing laws.

Limitation of the instruments instead of the content

The case of the Internet Research Agency shows that the fight against mass manipulation can be more efficient if it does not focus on the manipulative content, but on the Instruments and methods focused on manipulation. Legal norms are now being prepared in several countries to classify these instruments and methods as illegal.
The US Senate, for example, has been negotiating a legislative proposal since autumn 2017 that should make it transparent who in a campaign buys which ads for how much money on the major Internet platforms. In Ireland, parliament and government have been grappling with a proposal since December 2017, some of which contains similar provisions: The use of automated tools ("bots") in political communication on the Internet is to be made punishable. In Italy, in September 2018, a defendant was sentenced to nine months in prison for selling fake trip advisor reviews under various aliases.
There are plenty of objections to these types of legal solutions - both from the point of view of freedom of speech and practical feasibility - but what is certain is that, unlike approaches that sanction the content, they are less of the social polarization around the term truth are delivered. Whether Donald Trump is a good president will always be controversial; However, whether a company operated 20,000 fake profiles on Facebook can either be proven or not. It also follows from this that a regulation geared towards the tools of manipulation is much less suitable for silencing individual people or the media, views or opinions.

A forecast

Where the government's goal is to silence critical voices, the focus of the fight against fake news in the coming years will probably continue to be on the content of individual publications and on individual authors, perhaps even To hold disseminators accountable. On the other hand, where one really wants to take action against the massive, systematic manipulation, the focus of regulation will probably be on creating transparency and on the prosecution of misleading practices.


Péter Nádori

Translation: Sandra Rétháti
Copyright: Goethe-Institut Budapest
June 2019

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