brand logo

Criminalising fake news: Ensuring accuracy or eliminating dissent?

22 Apr 2021

The role of any form of media in any country is an exceedingly responsible one, and the outcomes of what they report may result in a countless number of things, depending on how it is reported and how it is perceived by the audience. The importance of that connection between the journalist and the audience cannot be stressed enough, as what the audience sees and reads in the media has a considerable impact on people’s lives. However, with the increased use of social media platforms, people now have the opportunity to actively participate in disseminating news, even though they are far from the traditional way of reporting, as it does not necessarily involve some of the most basic principles of journalism. However, circulating news and information via social media is increasing rapidly, where any person with access to the internet can create and share news and information without even revealing any information about them. There were times when fake news became a national-level topic, especially after the Easter Sunday attacks in 2019 and the outbreak of the Covid-19 pandemic last year. The media reported a number of incidents where law enforcement agencies took action against a number of individuals for spreading fake/misleading news with regard to the two aforementioned incidents. Also, following the Easter Sunday attacks, the then United National Front (UNF)-led Government proposed a five-year jail term for those found guilty of spreading fake news and hate speech on social media.   New laws to curb fake/misleading news The Cabinet of Ministers, on 19 April, approved a proposal put forward by Minister of Justice Ali Sabry and Minister of Mass Media and Cabinet Spokesman Keheliya Rambukwella regarding introducing new laws in order to curb the spread of false and misleading statements via the internet. Adding that the spread of false information on the internet poses a serious threat, and is seen as being used to divide society, spread hatred, and weaken democratic institutions, the Department of Government Information said that steps should be taken to provide access to accurate information to citizens and civil society by introducing a new law to protect society from the harms caused by false propaganda on the internet. It was also reported that the Cabinet had decided to instruct the Legal Draftsman to draft a bill to introduce the said laws. Speaking at a press briefing to announce cabinet decisions, Rambukwella said that around 17% of social media accounts in Sri Lanka are fake, and this has become an issue to the entire world. He added that countries such as Indonesia, India, Malaysia, and Singapore have brought about legal reforms in order to address this issue, and that the Government is currently in the process of devising a plan to address the same. “This is a threat even to senior journalists,” he said, noting that even though senior journalists put a lot of effort to ensure the accuracy of their news, due to the spread of fake news, those journalists may also face disadvantageous situations. He added that the Government considers this move to be a progressive step and that one of the main objectives is to protect and give value to veteran journalists. The Morning’s attempts to contact Rambukwella and Sabry in this connection proved futile. However, Additional Secretary to the Ministry of Justice Ministry Legal Division Piyumanthi Peiris had earlier told The Morning that the Ministry was considering amending the Penal Code to make fake news an offence.   New laws: A progressive move? In order to discuss how the new laws would be useful in curbing fake news and also the necessity of addressing the issue of increasing fake/misleading news, The Morning spoke to Free Media Movement (FMM), a collective of journalists and activists working in the media field. According to FMM Convener Seetha Ranjanee, even though fake and misleading news is a real issue Sri Lanka is dealing with, introducing new laws raises concerns as far as the freedom of journalists and practical aspects involving writing news are concerned. “It is true that there is an issue of the spread of fake news as well as statements amounting to hate speech via the internet, especially via social media. It is a well-known, long-lasting issue. However, bringing new laws criminalising such news items is a serious matter, because once laws are introduced concerning the internet, it can easily be extended to other forms of media as well,” she said. According to her, after the enactment of the aforementioned laws, it would not be possible to ensure that those laws would stop at regulating internet-based media, and that there is a risk that laws may later be brought concerning traditional print and electronic media too. Expressing similar opinions, Senel Wanniarahchi, Co-Founder of the Hashtag Generation, a youth-led movement advocating for the civic and political participation of the youth, acknowledged that the spread of false news is a matter that requires urgent attention, adding that a new law, however, may not be a viable solution because at the end of the day, these laws would be implemented by institutions that could be corrupt, partisan, and often patriarchal and racist. “Therefore, even though taking action to deal with fake news is important, such laws can easily be misused to target voices of dissent. Certain incidents that happened in Sri Lanka in the recent past, such as the arrest of writer Ramzy Razeek on the basis of a statement he made to the effect that ‘we need an ideological jihad against racism’, are examples of how laws that from the outside may seem like efforts done in ‘good faith’ can be interpreted in extremely problematic ways,” he further told The Morning. Speaking further, Ranjanee added: “Earlier there were criminal defamation laws, which provided for legal action against journalists on the basis of what was identified as offences committed by the media. After a long struggle by activists, in 2002, that law was removed. That law intended to take action against those who spoke on several matters which included statements against the government. Even though that law has now been stuck down, we are concerned as to whether these new laws concerning similar matters could be a new form of the said old laws.” Proper definitions are a staple in any law and most of the time, legal action are based on how the law identifies and defines an offence. With regard to the importance of having a proper mechanism to identify fake news, Ranjanee raised concerns over what constitutes fake or misleading news. “There are also problematic situations as far as defining fake news and misleading news is concerned. In some instances, fake news can actually be a mistake. Also, sometimes, internet-based media may critically speak of issues concerning the government or high-ranking government officials that other media do not talk about. It is also important to understand that sometimes people do not spread fake news on purpose; what happens is that they report based on the information they receive, and such news items can also be a result of misunderstandings or miscommunications. Under these laws, such news items may amount to fake news, and due to such practical issues, those who do not intentionally publish something inaccurate may also be found guilty. If the proposed laws are passed, there is a risk that what is written by someone could be interpreted as fake news or news items that constitute an insult to someone’s name, and in turn name the writer as an offender,” she explained. She emphasised that a person witnessing something detrimental in society has a right to raise his/her voice against it on the basis of the information he/she has – be it a journalist, social media user, human rights activist, or even a whistleblower. Speaking of how the new laws may affect journalists, Wanniarachchi said: “Our fear is that these new laws may result in a crackdown against dissenting voices and impinge on the freedom of expression. Also, it is important to note that this situation pertains to not only social media, but also certain mainstream media institutions as they appear to be extremely partisan, and in some instances, openly carry disinformation. In such a context, the internet, especially social media, is one of the few platforms that make it possible for the people to freely express themselves. The fear and anxiety many of us have over this proposal is that this new law will become yet another tool for the state to crackdown on voices of dissent.” Noting that new laws in this connection are not a pressing need since the existing laws as well as the facilities provided by social media platforms provide for action against fake and misleading news, Ranjanee said: “Currently, there are measures in place to take action against offences committed via the internet, as far as news items are concerned. Social media platforms such as Facebook provide such facilities, where one can complain if there is a post that is unacceptable due to some reason, and if that is in turn found to be true, the account may even be blocked. There are also laws in the existing legal system under which steps can be taken to deal with such news items.” She added that when it comes to fake news, especially ones that have the potential to trigger any harm to an ethnic or religious community or ethnic harmony, or amounts to hate speech, there is certainly a need for regulatory measures. She said, however, that when it comes to criticising government officials or the conduct of a government, which is a right of the people, there is a problematic situation in imposing new laws. She also said that necessary mechanisms exist under the existing laws, which can be used to deal with fake and misleading issues. Giving an example of the role of laws in this connection, she noted that even though the International Covenant on Civil and Political Rights (ICCPR) aims at protecting people’s rights, it too has limitations, and that spreading hate speech is not allowed. She also said that in a context where there are laws to address issues pertaining to fake and misleading news, she is puzzled as to why new laws are necessary. “Bringing laws that may be detrimental to the media as well as the freedom of speech and publication, and may also allow legal action against journalists, raises concerns,” she stressed.   Laws against fake/misleading news in the world A number of countries around the world have taken the initiative to introduce laws and policies to tackle fake and misleading news, especially after the Covid-19 pandemic emerged. China has strict laws against the spread of misinformation, and the Philippines and Vietnam too have passed similar laws last year. If found guilty under fake news laws imposed in Singapore, the culprit may face a fine up to $ 1 million and a 10-year jail term. Under Russia’s laws, a fine of up to Roubles 400,000 can be imposed for spreading false information online. In addition, France’s laws stipulate that anyone found guilty of violating that country’s fake news laws may be fined and jailed. According to Germany’s laws about spreading hate speech and fake news on social media, social media networks would be given a 24-hour period to remove such content and the failure to do so may attract a fine of up to € 50 million. According to the Austria-based International Press Institute, during the Covid-19 pandemic alone, 16 countries have passed new laws against fake and misleading information. Among these countries are Algeria, Azerbaijan, Bolivia, Brazil, Cambodia, Hungary, Jordan, the Philippines, Puerto Rico, Romania, Russia, Bosnia and Herzegovina, Thailand, the United Arab Emirates (UAE), Uzbekistan, and Vietnam. However, foreign media reports also give ample examples to suggest that laws against fake and misleading news may actually be used to suppress genuine news articles too. In January, a Chinese doctor who was working in Wuhan, named Dr. Li Wenliang, tried to warn officials about Covid-19. It was, however, reported that the Police, instead of paying attention to his warnings, warned him for “making false comments” and forced him to sign a document that he committed an offence by making such statements. The freedom of expression is a right guaranteed by Sri Lanka’s Constitution, and every citizen is entitled to that right, and so is the right to information. Even though increasing news and information sharing activities on the internet may be viewed as a good development that supports the people’s right to express their opinion, in that process, the responsibility for what is being conveyed should not be lost.


More News..