Fake news legislation criminalises activists

Most fake news laws do not provide a very clear definition of what will be prosecuted, allowing for mere opinions to be punished. -- 123rf.com

ON Sept 30, in Cambodia, journalist Youn Chhiv was sentenced to one year in prison and fined two million riel (RM2,000) over charges of incitement after he reported on the eviction of villagers and destruction of their property over state land claims. No judicial investigation was done before the trial as authorities assumed it was a case of flagrante delicto.

Fake news laws have been rolled out in East and South-East Asian countries to deal with the digital age’s out-of-control spread of disinformation. While these laws are genuinely intended to tackle the threat of fake news, they have been politicised and used against government critics and dissenting voices in many countries.

Six key targets accused of spreading “fake news” are identified: journalists, civil society activists, opposition leaders, student activists, artists, and tech companies. Vaguely worded provisions easily transform legitimate comments and accurate evidence-based criticism into defamation and fear mongering. Any questioning of government policies can be prosecuted, resulting in a chilling effect on freedom of expression.

These laws are routinely used to fight political opponents. In Singapore, the Protection from Online Falsehoods and Manipula-tion Act 2019 was used in its first months of existence against four prominent opposition figures before the 2020 general election.

Authoritarian leaders are also known to eavesdrop on the conversations and meetings of their political opponents. On Sept 9, the unconstitutionally dissolved Cambodia National Rescue Party saw a virtual meeting room infiltrated and participating exiled leaders threatened with never being able to return to Cambodia if they “kept working against national interests”. Whereas the right to privacy is protected under the Constitution and several international human rights treaties ratified by Cambodia, the executive power does not hesitate to manipulate fake news provisions to infringe on privacy rights of activists and political opponents and invoke charges such as insulting the king.

Simple citizens also face criminal charges over “fake news” accusations: in February 2020, a security guard in West Kowloon, Hong Kong, was the first person to be arrested under Section 20 of the Summary Offences Ordinance for sharing an audio clip online which raised concerns about co-workers on sick leave and asking the public to avoid the area in the context of the pandemic.

“Fake news” legislation also targets tech companies – they are not targeted for creating disinformation but for allowing its spread.

In Vietnam, the 2018 Cybersecurity Bill forces tech companies to have an office in the country so as to be able to force them to take down content the government deems to be “fake news”. Hefty fines push tech companies to be overzealous and take down any “risky” content. By targeting online platforms, governments have gained a strong censorship tool.

A global backlash against “fake news” legislation is emerging from the observed manipulation and misuse of provisions by governments to target opponents and silence criticism. Vague wording and politicised enforcement are on the radar of human rights organisations.

In Cambodia, the ruling CPP (Cambodian People’s Party) faces renewed criticism over its use of defamation and incitement provisions to suppress any political opposition by activists, political leaders or human rights defenders. Early this year, nearly 150 opposition figures and supporters were tried, many of them in absentia, many over charges of “incitement to commit a felony”.

Most fake news laws do not provide a very clear definition of what will be prosecuted, allowing for mere opinions to be punished. Another issue lies in the identification and investigation of fake news. As long as this remains in the hands of governments, or of a heavily politicised administrative corps, enforcement will remain biased.

Biased use of fake news laws results in rulers and government having total impunity even though they are known to spread disinformation, while the groups described above are deeply scrutinised and may be condemned over any displeasing statement. There is a flagrant inequity.

To remedy this situation, a review of existing laws is necessary to amend language and fit international standards.

The implementation of such laws should then be left to an independent institution. Independent agencies should be tasked with the identification of “fake news”, in collaboration with fact-checking groups. Additionally, alternative penalties should be preferred over criminal sentences, and guided by the principle of proportionality.

Such precautions would make for a more effective fight against disinformation while protecting core human rights such as freedom of expression and of opinion.

In Cambodia in particular, participation in the political life of the kingdom is at stake. – The Jakarta Post/Asia News Network

Sam Rainsy is acting president of the Cambodia National Rescue Party and former chairperson of the Council of Asian Liberals and Democrats.

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